THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


k 


SELECTED  CASES 


ON  THE 


LAW  OF  QUASI-CONTRACTS 


EDWIN  H.  WOODRUFF 

PROFESSOR  OF  LAW  IN  THE  COLLEGE  OF  LAW 
CORNELL  UNIVERSITY 


INDIANAPOLIS 
THE  BOBBS-MERRILL  COMPANY 

1905 


1905 


COPYRICSHT  1905 

By  EDWIN  H.  WOODRUFF 


The  llollenbcck  Prcfii 
ln>)Uuia|>olit) 


PREFACE. 


This  volume  is  intended  to  contain  a  representative  selection  of 
cases  upon  the  large  and  important  group  of  legal  duties  embraced 
in  the  term  quasi-contract,  and  to  afford  material  for  the  study  and 
discussion  of  the  principles  regulating  recovery  in  that  class  of  cases, 
as  those  principles  are  found  implicated  with,  and  working  upon,  the 
actual  facts  of  decided  cases.  For  the  historical  development  of  the 
law  of  quasi-contracts,  the  student  is  referred  to  the  masterly  His- 
tory of  Assumpsit ,  by  Professor  Ames,  which  he  has  kindly  per- 
mitted to  be  republished  as  an  appendix  to  this  volume. 

The  primary  division  of  the  work  into  three  parts  was  determined 
by  the  broad  classification  first  given  by  Professor  Ames  in  his 
History  of  Assumpsit,  and  adopted  by  Professor  Keener  in  the  in- 
troductory chapter  to  his  Treatise  on  Quasi-Contracts.  However,  by 
far  the  greater  part  of  the  subject  is  comprised  in  Part  III,  under 
the  general  doctrine  of  "Unjust  Enrichment,"  and  the  arrangement 
employed  by  the  present  editor  for  this  part,  while  not  the  only 
feasible  grouping,  will,  it  is  hoped,  be  practically  satisfactory.  As 
Dr.  Johnson  says  in  his  essay  on  Pope :  "Of  two  or  more  positions 
depending  upon  some  remote  or  general  principle,  there  is  seldom 
any  cogent  reason  why  one  should  precede  the  other" ;  and  so,  while 
the  cases  in  Part  III  depend  upon  the  very  general  principle  of 
"Unjust  Enrichment",  and  while  a  cogent  reason  cannot  always 
be  given  why  some  of  these  positions  should  precede  others,  never- 
theless the  special  correlation  of  analogous  topics  has  been  the  guide 
to  the  present  arrangement.  It  may  be  added  that  the  only  essay  at  a 
completely  developed  classification  of  the  law  of  quasi-contracts 
which  has  thus  far  been  published,  is  the  one  offered  tentatively  by 
Professor  Wigmore,  in  25  American  Laiv  Reznezv,  695   (1891). 

The  notes  appended  to  the  cases  are  largely  apposite  quotations 
from  judicial  decisions  which  in  many  instances  themselves  might 


667158 


IV  PREFACE. 

well  have  been  selected  for  publication  in  full,  had  not  the  limita- 
tions of  space  forbidden. 

In  1888,  Professor  Ames,  in  his  History  of  Assumpsit,  said :  "The 
equitable  principle  which  lies  at  the  foundation  of  the  great  bulk  of 
quasi-contracts,  namely,  that  one  person  shall  not  unjustly  enrich 
himself  at  the  expense  of  another,  has  established  itself  very  gradu- 
ally in  the  Common  Law.  Indeed  one  seeks  in  vain  to-day  in  the 
treatises  upon  the  Law  of  Contract  for  an  adequate  account  of  the 
nature,  importance  and  numerous  applications  of  this  principle." 
Later  in  the  same,  and  in  the  next  following  year.  Professor  Keener 
published  his  Cases  on  the  Law  of  Quasi-Contracts,  and  in  1893, 
his  Treatise  on  the  Law  of  Qiiasi-Contracts.  In  those  pioneer  works 
he  segregated  the  rules  of  this  branch  of  the  law,  and  in  his  Treatise, 
which  is  a  penetrating,  critical  analysis  of  the  subject,  delimited  the 
field  for  subsequent  workers.  But  the  literature  of  the  subject  is 
still  comparatively  meager,  and  therefore  this  collection  of  cases  will, 
^t  is  hoped,  prove  useful  to  the  practicing  lawyer  as  well  as  to  law 
students. 

College  of  Law,  Cornell  University, 
August  I,  1905. 


TABLE   OF   CONTENTS. 


PART    I. 
Recovery  upon  a  record., 

PAGE. 

A.  Recovery  upon  a  judgment i 

B.  Recovery  upon  a  recognizance 6 


PART    II. 

Recovery  upon  a  statutory,  or  official,  or 
customary  duty. 

A.  Statutory  duty 8 

B.  Official  duty 12 

C.  Customary  duty 14 

PART    III. 
Recovery  upon  the  doctrine  that  one  person  shall 

NOT    BE   allowed   TO    ENRICH    HIMSELF   UNJUSTLY    AT 
THE    EXPENSE    OF   ANOTHER. 

A.  Introductory — Quasi-contract  and  true  contract  dis- 

tinguished         19 

B.  Recovery  for  benefits  conferred  voluntarily 24 

I.     Benefits    conferred    in    the    absence    of    contractual 

agreement 24 

a.     Without  request 24 

In  general 24 

V 


Vi  TABLE  OF   CONTENTS. 

PAGE. 

Performance    of    obligation    imposed    by 

law  upon  defendant 28 

Performance    of    defendant's    contractual 

obligation    34 

Preservation  of  property 37 

Preservation  of  life 50 

Benefits  incidentally  conferred. , . . , 51 

b.     Upon   request 54 

In  general 54 

Family   relation 61 

Rewards   69 

2.     Benefits  conferred  in  the  performance  of,  or  under 

the  inducement  of  a  contractual  agreement 71 

a.  Capacity  of  parties 71 

Infants    71 

Insane   persons 71 

Married   women 73 

Corporations    yj 

Private  corporations "jy 

Municipal  corporations 79 

b.  Statute  of  frauds 90 

Plaintiff  in  default 90 

Defendant  in  default 104 

c.  Breach  of  contract 122 

Plaintiff  in  default , 122 

Defendant  in  default 153 

d.  Impossibility  of  performance 169 

Plaintiff  in  default 169 

Defendant  in  default 191 

e.  Illegal   contracts 206 

C.    Recovery  for  benefits  not  conferred  voluntarily 239 

I.     Mistake    239 

a.     Mistake  of  fact 239 

In   general 239 

Compromise  or  settlement 248 

Payor's  knowledge  or  belief 256 

When  not  against  conscience  for  defend- 
ant to  retain 264 

Change  of  defendant's  position 271 

Plaintiff  negligent 290 


TABLE    OF    CONTENTS.  Vll 

PAGE. 

Plaintiff  negligent  and  defendant's  posi- 
tion changed 293 

Equal   fault 297 

Notice  to  or  demand  upon  defendant.  . .  .   300 

Particular  applications 306 

Gratuity  conferred  under  mistake 306 

Mistake  as  to  the  existence  of  a  contract..   315 
Mistake  as  to  the  existence  of  the  subject- 
matter   329 

Mistake  as  to  the  title  of  a  vendor 334 

Improvements  put  by  mistake  upon  the 

property  of  another 342 

Performance  of  a  written  contract, — the 

contract  founded  on  mistake 354 

Mistake  as  to  negotiable  instruments 370 

Mistake  as  to  agent's  authority 389 

b.     Mistake  of  law 403 

In   general 403 

Particular  applications 423 

Void  ordinances 423 

Change  of  lav/ 430 

Payment  by  public  officers 435 

Payment  to  an  officer  of  the  court 438 

Foreign  law 441 

2.     Constraint 445 

a.  Constraint  by  fault  of  defendant 445 

In   general 445 

Contribution  45 1 

Contractors 45 1 

Tortfeasors  461 

b.  Duress  by  defendant 469 

Duress  of  property 469 

Personal   property 469 

Real   property 479 

Injury  to  business 482 

Non-performance  of  a  public  duty 490 

Public  officers 490 

Common  carriers  and  public  service  cor- 
corporations   49'^ 

Usurious  interest 5^9 


viii  TABLE   OF   CONTENTS. 

PAGE. 

Duress  of  person 515 

C     Compulsion  of  law 526 

Money  paid  after  action  begun 526 

Before  judgment 526 

After  judgment 531 

Recovery  of  taxes  paid 546 

3,    Waiver  of  tort 579 

a.  In  general 579 

Unjust  enrichment 587 

Diminution  of  plaintiff's  estate 590 

Joint  tortfeasors 596 

Injured  tenants  in  common 604 

b.  Particular  applications 604 

Fraud    604 

Money  procured  wrongfully  and  passed  to 

innocent  holder 610 

Trespass  to  goods c 622 

Trespass  to  land 625 

False  imprisonment ' 633 

Interference  with  status  or  contract 635 

Usurpation  of  office 636 

D.    Relation  of  quasi-contract  to  equity 640 


Appendix. 

The  History  of  Assumpsit,  by  James  Barr  Ames 653 

Index 685 


TABLE   OF   CASES. 


***  Where  n  is  prefixed  to  the  page 
present  editor,  in  a  note. 

PAGE. 

Abbot  V.  Town  of  Fremont  n.  635 
Abbott  V.  Draper  95 

Ackerman  v.  Ljonan  626 

Adair  v.  Winchester  642 

Adams,  Matter  of  n.  579 

Adams  v.  Irving  Nat.  Bk.  n.  525 
Alabama    Bk.    v.    Rivers  n,  613 

Albea  v.  Griffin  119 

Alfred  v.    Marquis   of   Fitzjames 

n.  309 
Allen  v.  Impett  641 

Allen  v.  Intendant  of  Lafayette  83 
Alton  v.  First  Nat.  Bk.  n.  408 

Amer.  Mut.  Life  Co.  v.  Bertram  224 
Amer.    Steamship    Co.    v.    Young 

n.  491 
Anderson  v.  Cameron  n.  579 

Anderson  v.  Pungs  n.  610 

Andrews  v.   Montgomery  i 

Angus  v.  Scully  n.  184 

Anonymous   (2  Show.)  205 

Appleby  v.  Dods  n.  175 

Appleton  Bk.  v.  McGilvray  n.  293 
Armstrong  Co.  v.  Clarion  Co.  462 
Asher  v.  Tomlinson  n.  133 

rvtkinson  v.  Denby  485 

Atwell  v.  Zeluff  574 

Auditor  v.  Ballard  n.  71 

Augner  v.  Mayor  nn.  5,  9 

Bailey  v.  Butterfield  n.  13 

Baldwin  v.  Burrows  «.  392 

Baltimore  &  Susq.  R.  R.  v.  Faunce 

239 


number,  the  case  is  referred  to,  by  the 

PAGE. 

Bank  of  Charleston    v.    Bk.    of 

the  State  616 

Bank  of  Chillicothe  v.  Dodge  443 
Bank  of  Commerce  v.  Union  Bk.  379 

Bank  of  Orange  v.  Brown  14 
Bank  of  St.    Albans   v.    Farmers' 

Bk.  11.  372 

Bank  of  Toronto  v.  Hamilton  275 

Banker  v.  Henderson  no 

Bannister  v.  Read  n.  167 

Barnes  v.   Shoemaker  n.  28 

Barnet  v.  National  Bk.  514 

Bartholomew  v.   Jackson  42 

Bates  V.  Insurance  Co.  n.  478 

Bath  Gas  Light  Co.  v.   Claffy  n.  79 

Beckwith  v.  Frisbie  39 

Bedier  v.  Fuller  n.  610 

Behring  v.   Somerville  277 

Belfast  Nat.  Bk.  v.  Stockton  n.  396 

Bender  v.  Bender  121 

Berkshire  Ins.  Co.  v.  Sturgis  n.  248 

Bernard  v.  Taylor  n.  213 

Billings  v.  Monmouth  394 

Bishop  v.  Corning  n.  414 

Bodenhamer  v.  Bodenhamer  12 

Bodine   v.    Commonwealth  n.  7 

Bohart  v.  Oberne  n.  392 

Bond  V.  Aitkin  317 

Booker  v.  Donohue  n.  640 

Booker  v.  Wolf  n.  116 
Borough  of  Allentown  v.  Saeger    560 

Boston  Ice  Co.  v.   Potter  26 

Boyce  v.  Wilson  354 

Brandner  v.  Krebbs  50 


TABLE   OF    CASES. 


^ 


PAGE. 

Brewer  v.  Tysor  n.  142 

Brewster  v.  Burnett  n.  331 

Bright  V.  Boyd  348 

Britton  v.  Turner  126 

Brown  v.  Brown  595 

Brown  v.  Harris  n.  204 

Brown  v.  Mcintosh  n.  510 

Brown  v.  Storm  n.  350 

Brown  v.  Timmany  218 

Brown  v.  Tuttle  63 

Brumagim  v.  Tillinghast  492 

Brundred  v.  Rice  mm.  590,  613 
Brunswick  Gas  Light  Co.  v.  U.  S. 

Gas  Co.  77 

Bryant's  Estate  n.  38 

Bucki  V.  McKinnon  n.  105 

Buckley  v.  Mayor  nn.  429,  483 

Buel  V.  Boughton  266 

Buffalo  V.  O'Malley  243 

Bullard  v.  Bell  8 

Burrows  v.  Ward  310 

Burwell  v.  Jackson  n.  338 

Butterfield  v.  Byron  180 

Byrd  v.  Boyd  124 

Byrne  v.  Schiller  n.  206 

Cahaba  v.  Burnett  423 
Calkins  v.  Griswold  n.  256 
Calvert  v.  Aldrich  43 
Camden  v.  Green  n.  425 
Carew  v.  Rutherford  w.  483 
Carpenter  v.  U.  S.  400 
Carr  v.  Stewart  242 
Carson  v.  M'Farland  283 
Carter  v.  First  Eccles.  Soc.  538 
Case  V.  Roberts  640 
Catlin  V.  Tobias  148 
Center  School  Township  v.  Com- 
missioners 432 
Central  Bridge  Co.  v.  Abbott  n.  9 
Central    Transportation    Co.    v. 

Pullman's   Co.  n.  78 

Chambers  v.  Miller  «,  388 

Champlin   v.  Laytin  n.  417 

Chanfjlcr  v.  Sanger  528 

Chnndler  v.  Webster  195 

Chapman  v.   I'orbes  n.  650 

Chase  v.  Corcoran  37 


Chase  v.  Dwinal 

Chatfield  v.  Paxton 

Chipman  v.  Morrill 

Churchill  v.  Holt 

Cincinnati  v.  Ogden 

City  of  London  v.  Goree 

Clabbon,  In  re 

Clark  V.  Pinney 

Clarke  v.  Dutcher 

Clinton  v.   Strong 

Cobb  V.  Charter 

Cockram  v.  Welby  m) 

Cole  V.  Clark 

Coleman  v.  U.  S. 

Collier  v.  Coates 

Collins  V.  Stove  Co. 

Collyer  v.  Collyer 

Columbus  &c.  Ry.  v.  Gaffney 

Colwell  v.  Peden 

Concord  Coal  Co.  v.  Ferrin 

Constantinides  v.  Walsh 

Cook  V.  Boston 

Cook  V.  C.  R.  I.  &  P.  R'y 

Cooke  V.  U.  S. 

CooHdge  V.  Brigham 

Cooper  V.  Cooper 

Cooper  V.  Phibbs 

Corn  Exch.  Bk.  v.  Nassau  Bk. 

Cosgriff  V.   Foss 

Covington  v.  Powell 

Craig  V.  Craig 

Cribbs   v.    Sowle 

Crow  V.  Boyd 

Crown  Cycle  Co.  v.  Brown 

Culbreath  v.  Culbreath 

Cummings  v.   Knight 

Cuningham  v.    Cuningham 

Cunningham  v.   Reardon 

Curtis  V.  Smith 

Davis  V.  Converse 
Davis  v.  Thompson 
Dawkins   v.    Sappington 
Day  v.  N.  Y.  C.  R.  R. 
De  Cesare  v.  Flauraud 


PAGE. 

469 

n.  257 
451 

M.    467 

M.  34 

n.  17 

M.  311 

541 

403 

n.  492 

M.  472 

t.  7,  13 

328 

•  n.  42 

n.  97 

n.  322 

n.  63 

19 

M.    471 

322 

30 

n.  425 
n.  504 

382 
n.  331 

313 
n.  408 
n.  272 

45 

n.  422 

460 

n.  523 

579 

604 

415 

M.    515 

n.  417 

M.    29 

157 

n.  515 

n.  34 

69 

n.   106 

n.  55 


Dedham  Nat.  Bk.  v.  Everett  Bk.    371 
Dcdman   v.   Williams  458 

Decry  v.  Hamilton  n.  399 


TABLE   OF    CASES. 


De  La  Cuesta  v.  Ins.  Co. 
De  Montague  v.  Bacharach 
Derby  v.  Johnson 
Detroit  Nat.  Bk.  v.   Blodgett 
Devine  v.  Edwards 
Dickerson  v.  Raleigh  BIdg.  A 

Dickinson  v.   Poughkeepsie 
Disbrow  v.  Durand 
Dix  V.   Marcy 
Dixon  V.  Ahem 
Dorsey  v.  Jackman 
Downs  V.  Finnegan 
Duncan  v.  Baker 
Duncan  v.  Ware 
Dupuy  V.  Roebuck 
Duval  V.  Wellman 

Eagle  V.  Smith 

Earle  v.  Bickford 

Earle  v.  Cob  urn 

Edwards  v.  Hardwood  Co. 

Eddy  V.  Smith 

Elliott  V.  Gibson 

Emery  v.  Dunbar 

Falls  V.  Cairo 

Fanson  v.  Linsley 

Farnam  v.  Davis 

Fay  V.  Slaughter 

Feeney  v.  Bardsley 

Fegan  v.  Gt.  Northern  Ry. 

Fenton  v.  Clark 

Finlay  v.  Bryson 

First  Baptist  Church  v.  Caughey   393 

First    Nat.    Bk.    of    Americus    v. 

Mayor  557 

First  Nat.  Bk.  v.  Sargeant        n.  481 
First  Nat.  Bk.  v.  Van  Voorhis  2 

Fisher  v.  Ins.  Co.  n.  226 

Fleetwood  v.  New  York  567 

Floyd  V.  Brown  602 

Fogg  V.  Holbrook  n.  28 

Force  v.  Haines  n.  42 

Forsyth  v.  Ganson  36 

Fowler  v.  Shearer  n.  74 

Frambers  v.  Risk  n.  258 

Franklin  Bank  v.  Raymond       m.  268 


PAGE. 

476 

n. 

167 

153 

n. 

523 

299 

sso 

n. 

Sii 

n.  82 

61 

n. 

105 

n. 

628 

334 

n. 

632 

133 

543 

n. 

544 

n. 

224 

1 

•  71 

n. 

336 

40 

246 

64s 

n.  9 

n. 

204 

565 

622 

n. 

102 

M. 

392 

142 

n. 

296 

n. 

189 

n. 

580 

PAGE. 

Frederick  v.  Douglas 

Co. 

435 

Freeman  v.  Jeffries 

n 

305 

Fuller  V.  Mowry 

67 

Fuller  V.  Shattuck 

n 

537 

Galusha  v.  Sherman 

521 

Gaskins  v.  Davis 

n 

354 

Gay  V.  Mooney 

108 

George  v.  Tallman 

n 

361 

Germania  Bank  v.  Boutell 

373 

Gillett  V.  Brewster 

n 

302 

Gillig  V.  Grant 

438 

Gillis  V.  Cobe 

n 

144 

Gilmore  v.  Wilbur 

n 

604 

Gleason  v.  Warner 

n.  29 

Golsen  v.   Brand 

454 

Goodrich  v.  Houghton 

237 

Gould  V.  Commissioners 

564 

Gould  V.  McFall 

545 

Grape  Sugar  Co.  v.  Small 

n. 

327 

Green  v.  Ovington 

6 

Griggs  v.  Austin 

200 

Gross  v.  Coffey 

511 

Guetzkow   v.  Breese 

n. 

483 

Guild  V.  Baldridge 

n. 

257 

Gutta  Percha  Co.  v.  Mayor 

n.     5 

Ham  V.  Goodrich 

nn 

105, 

165 

Harmony  v.  Bingham 

n. 

472 

Harris  v.  Christian 

10 

Harris  v.  Ferguson 

n. 

455 

Harris  v.  Jex 

430 

Harris  v.  Loyd 

245 

Harse  v.  Assur.  Co. 

222 

Hartford  Live   Stock 

Ins.  Co.  V. 

Matthews 

n. 

248 

Harvey  &  Boyd  v.  Olney 

n. 

429 

Hatcher  v.  Briggs 

n. 

350 

Haven  v.  Foster 

441 

Hawkins  v.  Deal 

n. 

102 

Hawley  v.  Moody 

114 

Hawtayne  v.  Bourne 

389 

Haynes  v.  Rudd 

524 

Heiserman  v.  B.  C.  R 

&  N. 

Ry. 

503 

Helena  v.  Dwyer 

427 

Hemminger  v.  Co. 

155 

Hemphill  v.  Moody 

409 

Hentig  v.  Staniforth 

219 

Xll 


TABLE   OF    CASES. 


PAGE. 

Hewitt  V.  Anderson  57 

Hickam  v.  Hickam  «.  309 
Hildebrand  v.  Fine  Art  Co.        n.  126 

Hindmarch  v.  Hoffman  614 

Hipp  V.  Crenshaw  54° 

Hogg  V.  Longstreth  445 

Holt  V.  Thomas  n.  247 

Hopf  V.  U.  S.  Baking  Co.  n.  636 

Hoskins  v.  Mitcheson  n.  97 

Hosmer  v.  Wilson  n.  157 

Hotchkiss  V.  Williams  n.  24 

Houghtaling  v.  Lewis  n.  359 

Howes  V.  Barker  356 

Hubbard  v.  Belden  189 

Hudson  V.  Hudson  164 

Huffman  v.  Hughlett  n.  601 

Hunt  V.  Silk  166 

Hunter  v.  Felton  25 

Hutton  V.  Edgerton  n.  4^7 
Huyett  &  Smith  Co.  v.   Co.       n.  175 

Inhabitants  of  Mil  ford  v.  Com- 
monwealth II 

Inhabitants  of  South  Scituate  v. 
Hanover  24 

Irvine  v.  Angus  n.  447 

Isle  Royale  Mining  Co.  v.  Hertin  350 

Jacobs  V.  Morange 
Jackson  v.  Loomis 
Janes  v.  Buzzard 
Jennings  v.  Camp 
Joannin  v.  Ogilvie 
Jones  V.  Hoar 

Kelley  v.  Lindsey 
Kelly  V.  Solari 
Kellogg  v.  Turpic 
Kenneth  v.  S.  Carolina  R. 
Ketcham  v.  Evertson 
Kidney  v.  Persons 
King  V.  Welcome 
Kingston   Bank   v.   Eltinge 

N.  Y.) 
Kingston   Bank  v.   Eltinge 

N.   Y.) 
Kirchgassncr  v.   Rodick 
Kirklan  &  Ilickson  v.  Brown     n.  539 


n. 

417 

11. 

347 

n. 

624 

122 

479 

n. 

580 

390 

258 

607 

R. 

498 

n. 

124 

581 

97 

(40 

271 

(66 

264,  n. 

293 

n.   62 

Kneil  v.   Egleston 
Knowlton  v.  Spring  Co. 
Koch  V.  Williams 
Koontz  V.  Cent.  Nat.  Bk. 
Kowalke  v.  Co. 
Kreiter  v.  Bomberger 
Kreitz  v.  Behrensmeyer 

Lafontain  v.  Hayhurst 

Laidlaw  v.  Marye 

Lamb  v.  Lamb 

Lamborn  v.  Commissioners 

Lauman   v.    Des    Moines 

Lawrence  v.  Amer.  Nat.  Bk. 

Lawrence  v.  Beaubien 

Leach  v.  Vining 

Leather    Manufacturers'    Bk. 

Bk. 
Lemans  v.  Wiley 
Lemon  v.  Grosskopf 
Levy  V.  Terwilliger 
Lightly  V.  Clouston 
Limited    Invest.   Assoc,   v.    Gh 

dale  Assoc. 
Lincoln  v.   Stockton 
Lincoln  v.  Worcester 
Lindsey  v.  Allen 
Liness  v.  Hesing 
Little   Rock   &   Ft.    Smith   R. 

V.  Perry 
Lockwood  V.  Barnes 
Long  V.  Finger 
Lord  V.  Wheeler 
Loring  v.  Bacon 
Louisiana  v.  New  Orleans 
Louisville  v.  Zanone 
Lovell  v.  Simpson 
Low  V.   Conn.   &   Passumpsic 

R. 

McArthur  v.  Luce 
McClay  v.  Hedge 
McCue,  Matter  of 
McDonald  v.  Lynch 
McDonald  v.  Mayer 
McGhee  v.  Ellis 
]\TcKibben  v.  Doyle 
McMillan  v.  Eastman 


PAGE. 

n 

.76 

214 

n. 

Id 

n. 

298 

n. 

251 

361 

636 

64 

n 

.  97 

n. 

625 

553 

n. 

579 

293 

11. 

417 

n. 

V. 

303 

303 

n. 

247 

230 

n. 

266 

635 

n- 

588 

M. 

396 

n. 

579 

572 

R. 

230 

n. 

327 

116 

Id 

n. 

184 

1 

I.   53 

r 

I.     5 

n. 

270 

490 

R. 

325 

262 

143 

n. 

579 

n. 

322 

79 

n.   34 

254 

n.  13 

TABLE    OF    CASES. 


PAGE. 

McMullen  v.  Hoffman 

n. 

229 

McMurtrie  v.  Keenan 

479 

McSorley  v.  Faulkner 

592 

Maddox  v.  Kennedy 

n.  13 

Malbon  v.   Birney 

n. 

142 

Manchester  v.  Burns 

n. 

313 

Manhattan   Fire   Alarm 

Co.   V 

Weber 

31 

Mann  v.  ^tna  Ins.  Co. 

n. 

543 

Mansfield  v.  Lynch 

n. 

270 

Martin  v.  Atkinson 

n. 

350 

Martin  v.  McCormick 

331 

Marvin  v.  Mandell 

n. 

513 

Masson  v.  Swan 

102 

Mathews  v.  Davis 

n. 

119 

Mayer  v.  Mayor 

n. 

288 

Mayor  of  Jersey  City  v. 

Riker 

551 

Mayor  of  Newport  v.  Saunders     630 


Mays  V.  Cincinnati 


n.  425 


Merchants'  Ins.  Co.  v.  Abbott    n.  613 


461 
n.  334 
H.  584 
M.  105 
n.   119 

651 


161 


Merryweather  v.  Nixan 
Meyer  v.  Richards 
Miller  v.  Miller 
Miller  v.   Roberts 
Miller  v.  Tobie 
Minchin  v.  Minchin 
Missouri  Elec.  Light  Co.  v.  Car- 
mo  dy 

Mobile    &    Montgomery    Ry.    v. 
Steiner  504 

Monongahela  Co.  v.  Wood  501 

Montgomery  v.  Cowlitz  Co.            571 

Moody  v.  Moody  34 

Moore  v.  Des  Arts  329 

Moore  v.  Fulham  526 

Moore  v.  Williams  337 

Morgan  v.  Beaumont  213 

Morgan  v.  Groff  n.  230 

Morgan  v.  Ravey  n.  18 

Morgan  Park  v.  Knopf  n.  438 

Morse  v.  Woodworth  515 

Moses  v.  Macferlan  531 

Mowatt  v.  Wright  nn.  264,  528 

Muir  V.  Craig  22) 

Murdock  v.  Gilchrist  n.  359 


Nassau  Bk.  v.  Bk.  of  Newburgh 

n.  620 
National  Granite  Bk.  v.  Tyndale  74 
National  Life  Ins.  Co.  v.  Jones  256 
National  Oil    Refining    Co.    v. 

Bush  628 

Neal  v.  Haygood  «.  13 

Needles  v.  Burk  413 

Nelson  v.  Kerr  n.  13 

Nelson  v.  Shelby  Co.  100 

Neumann  v.  Lacrosse  429 

Newall  V.  Tomlinson  272 

Newhall  v.  Wyatt  n.  613 

Niblo  V.  Binsse  175 

Nichols  V.  Bucknam  447 

Niedermeyer  v.  Univ.  of  Missouri  496 
Norman  v.  Will  n.  260 

Norris  v.   Churchill  455 

Northrup's  Exrs.  v.  Graves        n.  422 
Norton  v.  Marden  336,  n.  261 

O'Brien  v.  Young  n.     5 

O'Conley  v.  Natchez  n.  633 

Orear  v.  Botts  118 

Osbom  V.  Guy's  Hospital  311 

Osier  v.  Hobbs  66 

Overton  v.  Hudson  n.  13 

Paine  v.  Upton  n.  359 

Panton  v.  Water  Co.  482 


Parcher  v.  Marathon  Co. 

576 

Parker  v.  Tainter 

n.  114 

Parsons  v.  Moses 

346,  n.  350 

Patrick  v.  Putnam 

«.  189 

Patterson  v.  Patterson 

28 

Patterson  v.  Prior 

587 

Payne's  Appeal 

M.    315 

Pensacola  &  Atl.  R.  R.  v 

.  Brax- 

ton 

265 

People  ex  rel.  Dusenbury 

V.  Speir 

nn.  6,  23 

Perkinson  v.  Gilford 

n.  13 

Peters  v.  Lowenstein 

«.  513 

Peysor  v.  Mayor 

546 

Phelps  V.  Church  of  Our 

Lady      631 

Phelps  V.  Williamson 

204 

Phetteplace  v.  Bucklin 

287 

XIV 


TABLE    OF    CASES. 


PAGE. 

Philanthropic  Bldg.  Assoc,  v.  Mc- 

Knight  509 

Philbrook  v.  Belknap  94 

Phillips  V.  Homfray  n.  519 

Phillips  V.  McConica  n.  410 

Pingree  v.  Gas  Co.  506 

Pinkham  v.  Libbey  193 

Pitcher  v.  Turin  Plank  Road  Co.  411 

Pixley  V.  Ingram  m.  515 

Porter  v.  Dunn  163 

Portsmouth     Brewing  Co.     v. 

Mudge  n.  229 
Potomac  Coal  Co.  v.  Cumberland 

R.  R.  499 

Potter  V.  Carpenter  54 

Preston  v.  Boston  573 

Preston  v.  Hawley  n.  625 

Price  V.  Neal  370 

Puckett  V.  Roquemore  525 

Putnam  v.  Tyler  «.  347 


Quin  V.  Hill 


n.  29 


Rainer  v.  Huddleston 

n. 

104 

Ramsdell  v.  Butler 

647 

Rand  v.  Webber 

364 

Real  Est.  Co.  v.  Keech 

514 

Redmond  v.  ^layor 

n. 

549 

Reed  v.  McConnell 

117 

Regan  v.  Baldwin 

484 

Reid  V.  Rigby 

398 

Remington  Paper  Co.  v. 

O'Dough 

- 

erty 

1 

.     5 

Renard  v.   Fiedler 

n. 

413 

Reynolds  v.   Padgett 

624 

Reynolds  v.  Reynolds 

n. 

107 

Rhea  V.  Allison 

n. 

120 

Rhccl  V.  Hicks 

251 

Richards  v.  Allen 

104 

Richards  v.  Shaw 

151 

Richmond    v.    Union  Steamboat 

Co.  475 
-  ic'pcl  V.  Tns.  Co.  n.  251 
Riley  v.  Williams  11.  100 
Ripley  v.  Gelston  n.  492 
Riverside  Bank  v.  Bank  of  Shen- 
andoah 384 
Roberts  v.  Ely  648 


PAGE. 

Robinson  v.   City  Council  n.  417 

Rockford,  R.  I.  &  St.  L.  R.  R.  v. 

Sage  324 

Rockwell  V.  Proctor  17 

Rosenbaum  v.  Credit   System   Co. 

n.  443 
Ruabon  Steamship  Co.  v.  London 

Assur. 
Ruggles  V.  Beikie 
Rumford    Chemical    Works    v 

Ray 
Russell  V.   Clough 
Russell  V.  Stewart 
Rutherford  v.  Mclvor 

St.  Joseph's  Orphan  Asylum  ■ 

Wolpert 
St.  Louis  Brewing  Assoc,  v. 

Louis 
Salmond  v.  Price 
Sargent  v.  Currier 
Saunders  v.  Saunders 
Saunders  v.  Short 
Savage  v.   McCorkle 
Schillinger  v.  U.  S. 
Scholey  v.  Mumford 
Scott  v.  Ford 
Scott  v.  Bush 
Sears  v.  Grand  Lodge 
Shaffer  v.   Bacon 
Sharkey  v.  Mansfield 
Shear  v.  Wright 
Shearer  v.  Fowler 
Sheperd  v.  Young 
Sherman  v.   Kitsmiller 
Shreve  v.  Grimes 
Siegel-Cooper  Co.  v.   Eaton  C 
Silsbee  v.  Webber 
Skinner  v.  Henderson 
Skudera  v.  Ins.  Co. 
Skyring  v.  Greenwood 
Slater  Woolen  Co.  v.  Lamb 
Sioss  Iron  Co.  v.  Harvey 
Smart  v.  Gale 
Smart  v.  White 
Smith  v.  Blachley 
Smith  v.  Brady 
Smith  V.  Collins 


51 

1 

•  13 

576 

n. 

2,22 

1 

■  71 

n. 

261 

V. 

311 

St. 

n. 

483 

n 

•  34 

449 

n 

.  62 

n. 

153 

1 

•  35 

590 

472 

11. 

408 

n. 

lOI 

248 

n. 

268 

300 

191 

73 

n. 

311 

n. 

329 

n. 

119 

lo. 

169 

518 

221 

168 

n. 

291 

1 

•  78 

11. 

634 

339 

n. 

212 

226 

136 

n.    7 

TABLE   OF    CASES. 


XV 


Smith  V.  Glens   Falls    Ins.   Co. 

Smith  V.  Hatch 

Smith  V.  Richmond 

Smith  V.  Admrs.  of  Smith 

Smith  V.  Stewart 

Smout  V.  Ilbery 

Smyley  v.  Reese 

Snow  V.   Prescott 

Solinger  v.  Earle 

Southwick  V.  Bk.  of  Memphis 

Spalding  v.  Bk.  of  Muskingum 

Speake  v.  Richards 

Spooner  v.  Thompson 

Spring  Co.  v.  Knowlton 

Stache  v.  Ins.  Co. 

Stacy  V.  Foss 

Standish  v.  Ross 

Stanley  v.  Bircher 

Stanley  Rule  Co.  v.  Bailey 

Staples'  Appeal 

State  V.   McGuire 

State  Bank  v.   Ensminger 

State  National  Bk.  v.  Payne 

Steamship  Co.  v.  Joliffe 

Steele  v.  Sanchez 

Steeples  v.  Newton 

Stephens  v.  Bd.  of  Education 

Stuart  V.  Sears 

Stuhr  V.  Curran 

Sumpter  v.  Hedges 

Swift  Co.  V.  U.  S. 

Tankersley  v.  Childers 
Tarplee  v.  Capp 
Taylor  v.  Hare 
Taylor  v.  Root 
Teasedale  v.  Stoller 
Terry  v.  Munger 
Thomas  v.  Brown 
Thomas  v.  Evans 
Thomas  v.  Shooting   Club 
Thomas  v.  Thomas 
Thompson  v.  Bronk 
Thompson  v.  Nelson 
Thompson  v.  Williams 
Ticonic  Bank  v.  Smiley 
Tinslar  v.  May 
Tipton  V.  Feitner 


PAGE. 

PAGE. 

247 

Tongue  v.  Nutwell 

n.  347 

io6 

Tracy  v.  Talmage 

n.  212 

233 

Trainer  v.  Trumbull 

n.  311 

112 

Trimmer  v.  Rochester 

550 

625 

Troewert  v.  Decker 

n.  219 

1(^ 

Troy  V.  Bland                     nn.  1 

:5i,  432 

n.  31 

Turner  v.  Barber 

530 

".  537 

Turner  &  Otis  v.  Webster 

319 

487 

Tyler  v.  Mayor 

n.  247 

n.  613 

".  509 

Ulrich  V.  Ulrich 

n.  62 

n.  13 

Union  Bank  v.  Bank  of  U. 

S. 

297 

391 

Union  Hall  Assoc,  v.  Morrison  ;;.  350 

n.  217 

Union  Ins.  Co.  v.  Alleghany 

561 

n.  248 

Union  Stock  Yards  Co.  v. 

C. 

B. 

212 

&  Q.  R.  R. 

464 

n.  282 

United  States  v.  Dempsey 

n.  438 

w.  18 

United    States   v.    National 

Park 

260 

Bk. 

290 

n.  31 

United  States  v.  Pacific  R. 

R. 

"•  53 

11.    6 

Urie  V.  Johnston 

306 

n.  510 

613 

Van  Deusen  v.  Blum 

315 

n.    9 

Van  Santen  v.   Oil    Co. 

n.  449 

340 

Van  Werden  v.  Ins.  Co. 

n.  169 

134 

610 

Waite  V.  Leggett 

n.  261 

n.  251 

Waldron  v.  Davis 

71 

n.  638 

Walker  v.  Conant   (65   Mich.) 

n.  294 

n.  142 

Walker  v.   Conant    (69  Mich.) 

280 

n.  491 

Walker  v.  Ames 

536 

Walsh  v.  N.  Y.  &  Ky.  Co. 

n.  147 

604 

Ware  v.  Percival 

584 

285 

Wayne  Co.  v.  Randall 

n.  438 

338 

Webster  v.   Drinkwater 

58 

n.     5 

Welch  v.  Goodwin 

n.  384 

n.  544 

Welch  V.  Hicks 

190 

596 

Wells  V.  Adams 

n.  481 

90 

Wellston  Coal  Co.  v.  Co. 

157 

n.  346 

Wernniger,  In  re 

n.  31 

56 

Wessel  V.  Land  Co. 

n.  481 

n.  350 

West  V.  Houston 

263 

633 

Westlake  v.  St.  Louis 

n.  483 

n.  253 

Wheadon  v.  Olds 

255 

217 

Wheaton   v.   Hibbard 

513 

448 

Wheeler  v.   Hatheway 

n.  262 

241 

Whipple  V.  Stephens 

585 

144 

White  V.  Franklin  Bank 

206 

XVI 


TABLE   OF    CASES. 


White  V.  Miller 
White  River  Tp.  v.  Dorrell 
Whiting  V.  City  Bank 
Whitney  v.  Port  Huron 
Whittemore  v.  Farrington 
Wilde  V.  Baker 
Willard  v.  Doran  Co. 
Williams  v.  Bemis 
Williams  v.  Gibbes 
Williams  v.  Hathaway 
Williams  v.  Vanderbilt 
Williams  v.  West  Chic.  R.  R. 
Wilmington  v.  Wicks 
Wilson  V.  Alexander 


PAGE. 

PAGE, 

366 

Wilson  V.  Barker 

295 

396 

Windbiel  v.  Carroll 

263 

n.  387 

Winters  v.  Elliott 

n.  121 

568 

Witbeck  v.  Waine 

n.  359 

n.  335 

Witherby  v.  Mann 

n.  459 

n.  440 

Wolfe  V.  Howes 

185 

n.    5 

Wood  V.  Ry. 

n.     17 

109 

Wood  V.  Sheldon 

n.  334 

342 

Wright  V.  Butler 

n.  650 

360 

Wunsch  V.  Boldt 

n.  247 

M.    346 

n.  71 

Young  V.  Chicopee 

n.  184 

426 

«.  381 

Zink  V.  Wells- Fargo  Co. 

n.  616 

A  SELECTION  OF  CASES 


THE  LAW  OF  QUASI-CONTRACTS. 


PART  I. 
Recovery  upon  a  Record. 


A.    Recovery  upon  a  Judgment. 

ANDREW.^  V.  MONTGOMERY  and  others. 
i^9  Johns.  162. — 1821. 

Assumpsit,  on  a  judgment  recovered  against  the  defendants,  in 
the  Court  of  Common  Pleas  of  the  County  of  Essex,  in  the  state 
of  New  Jersey.  The  defendant's  counsel  insisted  that  the  action 
should  have  been  debt,  not  assumpsit. 

Spencer,  Ch.  J. — *  *  *  *  ^\^q  plaintifif  has  counted  upon  the 
judgment  in  New  Jersey,  as  a  simple  contract ;  and,  accordingly,  it 
is  set  forth  as  a  promise  to  pay  the  amount  adjudicated.  Now  it 
is  well  settled,  that  assumpsit  cannot  be  supported,  where  there  has 
been  an  express  contract  under  seal,  or  of  record  but  the  party 
must  proceed  in  debt  or  covenant,  where  the  contract  is  under  seal, 
or  in  debt,  if  it  be  of  record,  even  though  the  debtor,  after  such 
contract  were  made,  expressly  promised  to  perform  it.  ( i  Chitty,  94, 
and  the  numerous  cases  there  referred  to.)  In  Pease  v.  Howard, 
14  Johns.  Rep.  479,  this  court  decided  that  a  judgment  in  a 
justice's  court  was  not  within  the  statute  of  limitations,  like  a 
foreign  judgment,  and  that  it  was  in  the  nature  of  a  specialty.  The 
judgment  recovered  in  New  Jersey  being  admitted  by  the  plead- 
ings, and  standing  totally  unimpeached,  we  are  bound  to  consider 
it  as  fairly  and  justly  obtained,  and  as  establishing  a  debt  of  record 
against  the  defendant.     It  is  not,  therefore,  merely  prima  facie  evi- 

I 


RECOVERY    UPON    A    RECORD. 


dence  of  a  debt,  like  a  foreign  judgment,  but  absolute  and  decisive 
evidence  of  a  debt.  Assumpsit  then  will  not  lie  upon  it ;  and  with- 
out examining  the  pleas,  as  it  is  impossible  to  support  the  plaintiff's 
action,  be  they  ever  so  bad,  the  defendant  must  have  judgment. 

Judgment  for  the  defendant. 


FIRST  NATIONAL  BANK  OF  NASHUA  v.  VAN  VOORIS. 
6  South  Dakota  548. — 1895. 

Attachment  by  the  First  National  Bank  of  Nashua,  Iowa, 
against  William  F.  Van  Vooris.  From  an  order  dissolving  the  at- 
tachment, plaintiff  appeals.     Reversed. 

Kellam,  J. — This  is  an  appeal  from  an  order  of  the  Circuit 
Court  of  Brookings  County  discharging  an  attachment.  The  lead- 
ing question  in  the  case  is  whether,  within  the  meaning  of  our  at- 
tachment law,  a  judgment  of  a  sister  state  is  a  contract,  without  re- 
gard to  the  character  of  the  original  cause  of  action  which  entered 
into  it.  The  difficulty  is  not  to  find  direct  adjudications  upon  the 
general  question  of  whether  a  judgment  is  or  ought  to  be  classed  as  a 
contract,  for  they  are  almost  numberless  on  both  sides  of  the  ques- 
tion. The  embarrassment  is  to  determine  which  line  of  these  cases, 
so  squarely  opposed  to  each  other,  is  most  securely  grounded  upon 
good  reason,  and  most  likely  to  result  in  its  practical  application  in 
the  most  good  and  the  least  harm.  Although  some  elementary  law 
writers,  and  some  courts  whose  learning  is  so  great  and  whose 
judgment  is  so  nearly  infallible  as  to  almost  foreclose  further  in- 
quiry, have  declared  judgments  to  be  contracts,  and  have  so  classed 
them,  it  is  very  obvious  that  ordinarily  they  lack  the  element  of  con- 
sent, which  is  generally  named  as  the  very  life  and  spirit  of  a  con- 
tract. It  would  look  pedantic,  and  probably  serve  no  useful  purpose, 
to  undertake  in  this  opinion  to  rewrite  the  learning  found  in  the 
opinions  of  other  courts,  and  in  the  books  of  the  text  writers,  upon 
this  question  of  the  contract  character  of  a  judgment.  A  very  brief 
examination  of  the  subject  demonstrates  the  fact  that  the  most 
learned,  careful,  and  thoughtful  judges  and  lawyers  have  reached 
directly  opposite  conclusions.  In  Black  on  Judgments  (Vol.  I,  §  7 
et  seq.)  are  marshaled  a  large  number  of  these  conflicting  decisions. 
In  Louisiana  v.  Mayor,  etc.,  of  New  Orleans,  109  U.  S.  285,  3  Sup. 
Ct.  211,  the  judges  of  the  Federal  Supreme  Court  could  not  agree 
that  a  judgment  was  or  was  not  a  contract. 

It  seems  to  me,  however,  that,  even  if  a  judgment  is  not  a  contract 
in  a  liroad  and  unqualified  sense,  it  docs  not  necessarily  follow  that 
a  foreign  judgment  cannot  be  the  basis  of  an  attachment.  This  must 
depend  upon  the  interpretation  to  be  given  to  the  expression,  "action 
arising  on  contract,"  as  used  in  the  attachment  law.  The  original 
office  of  the  attachment  was  to  secure  the  collection  of  debts.    The 


JUDGMENT.  3 

relation  of  debtor  and  creditor  must  exist.  It  could  not  be  used  in 
actions  for  wrongs  or  torts.  In  some  of  the  states  this  scope  of 
the  proceeding  has  been  enlarged  so  as  to  include  in  some  states 
specified,  and  in  others  all,  actions  in  tort.  Actions  at  law  are  funda- 
mentally and  logically  divided  into  two  classes, — "actions  ex  con- 
tractu" and  "actions  ex  delicto,"' — though  these  express  terms  are 
not  employed  in  the  statute.  Everybody  knows  what  these  terms 
mean,  and,  while  the  legislature  seemed  to  prefer  English  words, 
we  are  inclined  to  think  that  they  used  this  expression,  "actions  aris- 
ing on  contract,"  as  the  equivalent  of  "actions  ex  contractu,"  just  as 
they  substituted  "claim  and  delivery"  for  "replevin."  Now,  while 
it  may  seem  essentially  contradictory  to  say  that  an  action  brought 
on  something  which  is  not  a  contract  is  an  action  ex  contractu,  or 
an  "action  arising  on  contract,"  still  what  we  seek  is  to  know  what 
kind  of  an  action  the  legislature  meant  when  they  referred  in  their 
attachment  law  to  an  "action  arising  on  contract."  It  seems  to  us 
that  the  thought  and  purpose  of  this  first  paragraph  of  the  at- 
tachment law  was  to  declare  in  what  general  class  of  actions  an 
attachment  would  lie.  It  was  a  declaration  of  the  purpose  and  policy 
of  the  attachment  law  of  this  state  as  to  what  general  class  or  kind 
of  actions  might  be  aided  by  attachment.  By  the  statutes  of  some  of 
the  states,  attachments  were  allowed  in  any  action  for  the  recovery 
of  money.  Sometimes  both  classes  were  expressly  named,  as  in 
Georgia,  where  it  was  available  "in  all  cases  of  money  demands, 
whether  arising  ex  contractu  or  ex  delicto."  In  others  the  remedy 
was  confined  to  actions  "on  contract,  express  or  implied" ;  "actions 
on  contract" ;  "actions  arising  on  contracts,"  etc., — all  meaning,  as 
we  think,  that  general  class  of  actions  known  in  legal  nomenclature 
as  "actions  ex  contractu."  Subsequent  provisions  are  supplementary, 
and  define  particularly  the  further  conditions  that  must  exist  to 
justify  the  issue  of  the  attachment.  The  general  condition  an- 
nounced in  the  beginning  is  that  the  action  must  be  of  that  class 
known  as  "actions  on  contracts,"  as  distinguished  from  "actions  for 
torts."  Actions  on  judgments  form  a  very  common  class  of  actions, 
and  have  always  been  brought  as  ex  contractu  actions,  and  not  as 
tort  or  ex  delicto  actions.  O'Brien  v.  Young,  95  N.  Y.  431 ;  Louis- 
iana v.  Mayor,  etc.,  of  New  Orleans,  supra ;  Johnson  v.  Butler,  2 
Iowa  535.  This  is  not  because  judgments  are  essentially  and  abso- 
lutely contracts,  but  because  the  obligation  imposed  by  them  is  more 
in  the  nature  of  a  contract  liability  than  a  tort  liability.  It  seems 
much  the  same  in  character  as  the  liability  of  an  infant  to  pay  for 
necessaries.  The  judgment  against  him  does  not  rest  upon  his  con- 
tract liability,  for  he  is  not  required  to  pay  what  he  promised  or 
agreed  to  pay,  but  simply  what  it  is  right  for  him  to  pay,  and  yet 
his  liability  is  regarded  and  classed  as  contractual. 

We  are  inclined  to  regard  a  judgtnent,  not  as  a  contract,  but  as  a 
quasi-contract,  which  the  legislature  and  the  courts  have  treated 
as  a  contract  in  respect  to  the  remedy  by  subsequent  action  upon 
it ;  and  so,  as  before  suggested,  the  question  whether,  under  our 


4  RECOVERY    UPON    A    RECORD. 

Statute,  an  attachment  may  issue  in  an  action  on  a  judgment  depends 
upon  the  sense  in  which  the  legislature  used  the  expression,  "action 
arising  on  contract."  If  used  in  an  exact  and  literal  sense,  an  action 
on  a  judgment  would  not,  in  our  opinion,  be  included;  but  if  used 
in  a  general  and  leading  sense,  to  distinguish  actions  of  one  class 
from  those  of  the  other,  then  the  expression  must  be  presumed  to 
have  been  used  in  view  of  the  common  understanding  and  practice 
that  actions  on  judgments  were  actions  on  contract.  I  think  the 
same  meaning  was  intended  here,  as  by  the  same  words  in  section 
4915,  providing  that  a  cause  of  action  "arising  on  contract"  may  be 
pleaded  as  a  counterclaim.  I  think  there  could  be  little  doubt  that 
an  existing  judgment  might,  under  this  provision,  be  pleaded  as  a 
counterclaim.  This  point  was  directly  ruled  in  Taylor  v.  Root,  *43 
N.  Y.  335,  where  it  was  held  that,  in  an  action  on  contract,  a  judg- 
ment in  an  action  of  slander  could  be  set  up  as  a  counterclaim  for 
the  reason  that,  within  the  meaning  of  that  provision,  it  was  a  cause 
of  action  arising  on  contract.  In  Wyman  v.  Mitchell,  i  Cow.  316, 
and  AlcCoun  v.  Railroad  Co.,  50  N.  Y.  176,  and  O'Brien  v.  Young, 
95  N.  Y.  428,  all  New  York  cases,  it  was  distinctly  said  that  a  judg- 
ment was  not  a  contract ;  and  yet  in  Nazro  v.  Oil  Co.,  36  Hun  296, 
and  again  in  Gutta-Percha  &  Rubber  Manuf'g  Co.  v.  Mayor,  etc., 
108  N.  Y,  276,  15  N.  E.  402,  reversing  46  Hun  237,  it  was  held 
that  an  action  on  a  judgment  was  one  on  "a  contract  express  or  im- 
plied," within  the  meaning  of  the  attachment  law,  and  the  right  to 
attachment  was  in  each  case  sustained.  In  the  latter  case  the  court 
said :  "In  a  suit  upon  a  binding  judgment,  whether  foreign  or  do- 
mestic, the  plaintiff  must  therefore  be  entitled  to  the  same  provi- 
sional remedies  to  which  he  would  be  entitled  in  an  action  upon  a 
'contract  express  or  implied."  Upon  the  same  line  the  supreme  court 
of  North  Carolina  said  that,  while  judgments  were  not  treated  as 
contracts  for  all  purposes,  they  were  so  treated  for  the  purpose  of 
distinguishing  them  from  causes  of  action  ex  delicto,  and  that  they 
were  not  included  in  a  statute  covering  causes  of  action  "not  aris- 
ing out  of  contract."  See  Moore  v.  Nowell,  94  N.  C.  265.  In  John- 
son v.  Butler,  2  Iowa  535,  an  attachment  was  issued  on  an  action 
on  a  judgment.  Their  attachment  law  prescribes  a  different  pro- 
cedure in  an  action  "founded  on  contract"  from  that  in  an  action 
"not  founded  on  contract."  The  question  was  as  to  which  class  the 
action  belonged.  The  court  said :  "The  distinction  is  manifestly 
between  actions  ex  contractu  and  ex  delicto,  and  it  was  always  so 
understood  and  so  acted  upon.  ''^  *  *  The  Code  does  not  recog- 
nize the  common-law  technical  names  of  action,  nor,  in  this  case, 
even  the  general  classification  of  those  upon  contract  and  those  of 
tort,  in  express  and  technical  terms ;  still  the  sense  cannot  be  mis- 
taken." The  Wisconsin  supreme  court  in  Childs  v.  Manufacturing 
Co.,  (Wis.)  32  N.  W.  43,  discussed  the  question  whether  an  action 
on  a  judgment,  as  one  arising  on  "contract  expressed  or  implied," 
could  be  joined  with  an  action  for  the  breach  of  an  express  contract. 
and  said :    "When  we  consider  the  object  of  section  2647,  we  think 


JUDGMENT.  5 

it  very  clear  that  the  legislature  intended  to  use  the  word  'contract' 
in  said  subdivision  in  its  largest  sense,  and  not  in  a  restricted  sense. 
The  object  of  the  section,  as  a  whole,  is  to  classify  causes  of  action 
with  reference  to  their  joinder  in  one  and  the  same  action.  *  *  * 
In  this  view  of  the  subject,  notwithstanding  the  fact  that  in  other 
parts  of  the  statute,  and  for  other  purposes,  the  legislature  seems  to 
have  made  a  distinction  between  'contracts'  and  'judgments,'  that 
fact  furnishes  no  good  reason  for  holding  that  in  said  section  2647 
the  word  'contract'  was  not  intended  to  be  used  in  its  larger  mean- 
ing, so  as  to  cover  a  case  of  a  judgment  for  the  payment  of  money." 
Against  this  enlarged  interpretation  of  the  expression,  "actions 
arising  on  contract,"  so  as  to  include  an  action  on  a  judgment,  it  is 
urged  that  the  legislature  of  at  least  one  of  the  states,  Nebraska, 
did  not  so  use  or  understand  it,  for  they  thought  it  necessary  to  ex- 
pressly add  "judgment  or  decree"  to  "debt  or  demand  arising  upon 
contract."  There  is  certainly  some  force  in  this,  but  the  argument 
is  of  the  same  character  as  it  would  be  to  ui'ge  that  under  our  law 
an  attachment  would  lie  in  an  action  for  a  breach  of  promise  to 
marry,  because  in  New  York  it  was  thought  necessary  to  except 
such  actions  from  those  on  "contract,  expressed  or  implied ;"  and 
our  legislature  has  not  made  such  exception,  thus  indicating,  as  the 
argument  would  be,  that  they  intended  to  allow  attachments  in 
such  cases.  We  do  not  think  the  fact  in  either  case,  or  the  inference 
therefrom,  is  potent  enough  to  control  our  conclusion  as  to  the 
proper  interpretation  of  our  law.  While  the  question  is  not  entirely 
free  from  embarrassment,  we  conclude  that  an  action  on  a  judg- 
ment is  an  "action  arising  on  contract,"  within  the  meaning  of  that; 
expression  as  used  in  our  attachment  law,  and  that  this  is  so  whether 
the  original  cause  of  action  which  entered  into  the  judgment  was  one 
on  contract  or  tort.  This  view  necessitates  the  conclusion  that  the 
court  erred  in  discharging  the  attachment,  on  the  ground  that  the 
action  was  not  one  arising  on  contract,  and  the  order  appealed  from 
is  reversed.  All  the  judges  concur.^ 

*  Meaning  of  "Contract"  as  Used  in  Statutes. — A  judgment  is  not  a  con- 
tract within  the  meaning  of  the  constitutional  provision  against  legislation  im- 
pairing the  obligation  of  contracts,  Louisiana  v.  New  Orleans,  log  U.  S.  285 
(1883).  The  following  New  York  cases  serve  to  illustrate,  by  judicial  deter- 
mination, whether  the  word  "Contract"  as  used  in  various  statutes  means  true 
contract  only,  or  includes  quasi-contract  as  well :  "Express  or  implied  con- 
tract" in  §  420,  Code  Civ.  Pro.  (taking  judgment  without  application  to  the 
court), — a  statutory  liability  to  refund  is  an  implied  contract,  Augner  v. 
Mayor,  14  App.  D.  461  (1897).  "Cause  of  action  on  contract"  in  §  501,  subd.  2,  of 
Code  Civ.  Pro.  (counterclaim  by  such  cause  of  action), — a  judgment  in  a  tort 
action  is  an  implied  contract,  Taylor  v.  Root,  4  Keyes  335  (1868).  "Contract 
express  or  implied"  in  §  635,  subd.  i,  of  Code  Civ.  Pro.  (granting  warrant  of 
attachment), — a  judgment  is  an  implied  contract,  Gutta  Percha  Co.  v.  ]\Iayor, 
108  N.  Y.  276  (1888),  but  a  statutory  liability  to  pay  costs  is  not.  Remington 
Paper  Co.  v.  O'Dougherty,  96  N.  Y.  666  (188^1),  affirming,  without  opinion,  32 
Hun  255.  Exception  of  "any  contract  or  obligation  made  before  the  passage 
of  the  act"  in  ch.  538,  Laws  of  1879  (reducing  legal  rate  of  interest), — a  judg- 
ment is  not  a  contract,  O'Brien  v.  Young,  95  N.  Y.  428  (1884).   "Judgment  or 


6  RECOVERY    UPON    A    RECORD. 

B.     Recovery  upon  a  Recognizance. 

GREEN  &  GREEN  v.  OVINGTON  &  BLEECKER. 
i6  Johns.  55. — 1819. 

Spencer,  J. — *  *  *  *  'pj^e  plaintiff  declares  in  debt,  on  a 
record  of  recognizance  of  bail  entered  into  by  the  defendants,  in  the 
Mayor's  court,  as  of  April  term  of  that  court,  in  1810;  and  refers, 
in  his  declaration,  to  the  record  of  recognizance  remaining  in  that 
court,  in  the  usual  form  of  declaring  on  records  of  judgment  or 
recognizance,  pront  patct  per  recordnni. 

The  defendant's  plea  impeaches  the  record,  in  stating  that  the 
bail-piece,  which  is  the  warrant  for  the  recognizance  record,  was 
not  acknowledged  by  the  defendants  until  after  the  judgment  in  the 
original  cause,  to  wit,  the  24th  of  January,  181 1 ;  and  the  plea  con- 
cludes with  the  allegation,  that  the  bail-piece  is  void.  As  the  plea 
is  clearly  bad,  it  is  unnecessary  to  take  any  particular  notice  of  the 
replication.  Although  the  recognizance  of  bail  is  taken  before  a 
single  judge  of  a  court,  it  is,  in  legal  contemplation,  done  in  court ; 
and  it  is  so  entered.  The  bail-piece  is  a  mere  memorandum  of  the 
recognizance,  authorizing  the  making  up  the  record  of  recognizance 
of  bail,  and  when  that  is  filed  it  becomes  a  record  of  the  court 
and  the  party  in  whose  favor  it  is  acknowledged,  may,  on  its  being 
forfeited,  bring  either  a  scire  facias,  or  debt,  at  his  election.  The 
validity  of  records,  among  which  are  recognizances  of  bail,  cannot, 
in  pleading,  be  impeached  or  affected  by  any  supposed  defect  or  il- 
legality in  the  transaction  on  which  they  were  founded ;  nor  can 
there  be  any  allegation  against  the  validity  of  a  record,  (i  Chitty 
PI.  354,  and  the  cases  there  cited.)  It  is  to  be  observed  that  all  the 
pleas  by  bail,  of  which  we  have  any  precedent,  state  matters  con- 
sistent with  the  record.  If  the  record  is  untruly  stated,  the  defend- 
ants can  avail  themselves  of  such  defect,  only  by  pleading  mil  tiel 
record.  Judgment  for  the  plaintiff.^ 

decree  founded  upon  contract"  in  ch.  300,  §  i  of  Laws  of  183 1  (arrest  in  civil 
actions), — a  judgment  founded  upon  a  quasi-contractual  liability  is  not  a 
judgment  founded  upon  contract.  People  ex  rel.  Dusenbury  v.  Speir,  yy  N.  Y. 
144  (1879).  And  see  also,  Willard  v.  Doran  &  Wright  Co.,  48  Hun  402  (1888), 
wbcre  §  1013  of  the  Code  Civ.  Pro.  (providing  for  compulsory  reference)  is 
held  applicaide  to  actions  on  true  contract  only. 

'  In  State  v.  McCuirc.  42  Minn.  27  (1889),  the  court  says:  "A  recognizance 
fiiffers  from  a  bond  in  tin's :  that  while  the  latter,  which  is  attested  by  the  sig- 
nature and  seal  of  the  obligor,  creates  a  fresh  or  new  obligation,  the  former  is 
an  acknowledgment  on  record  of  an  already  existing  debt,  with  condition  to  be 
void  on  performance  of  the  thing  stipulated,  and  attested  by  the  record  of  the 
court  alone,  .and  not  by  the  obligor's  signature  and  seal.  It  is  undoubtedly  es- 
sential that  it  be  a  matter  of  record,  and  that  it  contain  and  express  in  the 
body  of  it  the  material  parts  of  the  obligation  and  condition;  and,  if  deficient  in 
this  respect,  the  record  cannot  l)e  aided  by  parol.  Tn  an  action  of  debt  on  a 
recognizance  at  common  law,  the  utmost  strictness  that  was  ever  required  was 


RECOGNIZANCE.  7 

that  the  declaration  should  state  it  with  certainty,  pursuing  the  description  in 
the  entry  of  recognizance,  and  should  allege  in  what  court,  and  at  whose  suit, 
and  for  what  sum  the  defendants  acknowledged  themselves  obligated;  also, 
that  it  should  be  averred  that  it  is  a  record,  and  the  breach  stated  according 
to  the  terms  of  the  recognizance.  We  cannot  see  wherein  the  complaint  in 
this  action  fails  to  comply  with  a  single  one  of  these  requirements." 

In  Bodine  v.  Commonwealth,  24  Pa.  St.  69  (1854),  the  court  says:  "The  2d 
section  of  the  Act  of  2d  December,  1783,  and  the  2d  section  of  the  Act  of  30th 
March,  1821  (Brightly's  Purdon  375),  confer  jurisdiction  upon  the  common 
pleas  over  forfeited  recognizances,  but  do  not  prescribe  the  form  of  action  to 
be  brought.  Debt  has  generally  been  the  action  adopted,  but  in  some  parts  of 
the  state  we  are  told  the  scire  facias  has  uniformly  been  employed.  We  are  of 
opinion  that  either  action  will  lie.  Of  the  two  actions  perhaps  the  scire  facias 
is  most  appropriate,  for  the  recognizance  is  matter  of  record,  is  in  the  nature 
of  a  judgment,  and  the  process  upon  it  is  for  the  purpose  of  carrying  it  into 
execution,  and  is  rather  judicial  than  original.  It  is  no  further  to  be  reckoned 
an  original  suit  than  that  the  defendant  has  a  right  to  plead  to  it.  It  is  founded 
upon  the  recognizance,  and,  partaking  of  its  nature,  must  be  considered  as 
flowing  from  it;  and  when  final  judgment  shall  be  given  the  whole  is  to  be 
taken  as  one  record :  Cobbet's  Case,  2  Yeates  362.  Chitty,  in  his  excellent 
work  on  Pleading,  Vol.  I,  p.  100,  citing  Tidd's  Practice,  expresses  preference 
for  the  scire  facias  in  these  words :  "Debt  is  sometimes  brought  upon  a  re- 
cognizance of  bail,  but  the  remedy  thereon  is  more  frequently  by  scire  facias, 
because  in  the  latter  the  proceeding  is  more  expeditious,  and  the  bail  have  less 
opportunity  of  discharging  themselves  by  rendering  their  principal." 

In  Smith  v.  Collins,  42  Kan.  259  (1889),  the  court  says  (p.  260)  :  "Strictly 
speaking,  a  recognizance  is  a  debt  confessed  to  the  state  which  may  be  avoided 
upon  the  conditions  stated.  At  common  law  the  forfeiture  of  the  recognizance 
was  equivalent  to  a  judgment.  *  *  *  Another  theory  of  the  common  law 
was  that  the  cognizors  by  an  acknowledgment  of  the  cognizance  had  already 
submitted  themselves  to  the  jurisdiction  of  the  court;"  and  from  these  theories 
grew  a  rule  that  "recognizances  must  be  prosecuted  in  the  court  in  which  they 
were  taken  or  acknowledged,  or  to  which  they  were  returned." 

See  also,  as  to  recovery  upon  a  record,  Cockram  v.  Welby,  2  Show.  79,  re- 
ported herein  at  p.  13,  note. 


PART  II. 

Recovery  Upon  a  Statutory,  or  Official,  or 
Customary  Duty. 

A.     Statutory  Duty. 
Story,  J,  in  BULLARD  v.  BELL. 

I  Mason  243,  298. — 181 7. 

This  is  a  liability  created,  not  merely  by  the  act  of  the  parties, 
but  by  the  express  terms  of  a  statute.  The  act  of  incorporation  pro- 
vides "that  if  said  corporation  shall,  at  any  time  hereafter,  divide 
their  stock,  previous  to  the  payment  of  all  their  bills,  or  shall  refuse* 
or  neglect  to  pay  any  of  their  bills  when  presented  for  payment  in 
the  usual  manner,  the  original  stockholders,  their  successors  and  as- 
signs, and  the  members  of  such  corporation  shall,  in  their  private 
capacities,  be  jointly  and  severally  liable  to  the  holder  of  any  bill 
or  bills  issued  by  the  said  corporation  for  the  payment  thereof,"  etc., 
etc.  I  agree  at  once  to  the  position,  that  the  bills  of  the  bank  are  to  be 
considered  originally  as  the  debts  of  the  corporation  and  not  of  the 
corporators ;  and,  except  from  some  special  provision  by  statute,  the 
latter  cannot  be  made  ansvv^erable  for  the  acts  or  debts  of  the  former. 
They  are  altogether  in  law  distinct  persons  and  capable  of  contract- 
ing with  each  other.  But  the  corporators  are  not  strangers  to  the 
corporation.  On  the  contrary,  the  law  contemplates  a  privity  be- 
tween them,  and  upon  that  privity  has  created  an  obligation  on  the 
corporators,  under  certain  circumstances,  to  pay  the  debt  of  the  cor- 
poration. Nothing  can  be  better  settled  than  that  an  action  of  debt 
lies  for  a  duty,  created  by  the  common  law,  or  by  custom.  A  fortiori 
it  must  lie,  where  the  duty  is  created  by  statute.  Mr.  Justice  Black- 
stone  says,  "that  every  person  is  bound,  and  hath  virtually  agreed 
to  pay  such  particular  sums  of  money,  as  are  charged  on  him  by 
the  sentence,  or  assessed  by  the  interpretation  of  the  law.  What- 
ever, therefore,  the  law  orders  any  one  to  pay,  that  becomes  in- 
stantly a  debt,  which  he  hath  beforehand  contracted  to  discharge." 
Without  placing  any  reliance  upon  this  refined  notion  of  contracts, 
it  cannot  be  doubted  that  the  learned  judge  has  expressed  the  true 
doctrine  of  the  law.  Whatever  is  enjoined  by  a  statute  to  be  done, 
creates  a  duty  on  the  party,  which  he  is  bound  to  perform.    The 


STATUTORY    DUTY.  9 

whole  theory  and  practice  of  poHtical  and  civil  obli,e^ations  rest  upon 
this  principle.  When  therefore  a  statute  declares,  that,  under  certain 
circumstances,  a  stockholder  in  a  bank  shall  pay  the  debt  due  from 
the  bank,  and  those  circumstances  occur,  it  creates  a  direct  and  im- 
mediate obli.c^ation  to  pay  it.  The  consideration  may  be  collateral 
or  not,  but  it  is  not  a  subject-matter  of  inquiry,  and  to  deny  that 
it  is  a  duty  on  the  stockholder  to  pay  the  money,  is  to  deny  the 
authority  of  the  statute  itself,  for  a  duty  is  nothing  more  than  a 
civil  obligation  to  perform  that  which  the  law  enjoins.  Here  then 
the  law  has  declared  that  the  stockholders  shall  be  liable  to  pay  a 
specific  sum,  and  it  imposes  on  them  a  duty  so  to  do.  How  then 
can  the  court  say  that  debt  does  not  lie,  since  there  is  a  duty  on  the 
defendant  to  pay  the  plaintiff  a  determinate  sum  of  money?  There 
is  no  room,  under  this  view  of  the  case,  for  entertaining-  any  ques- 
tion as  to  collateral  undertakings.  The  law  has  created  a  direct 
liability,  a  liability  as  direct  and  cogent,  as  though  the  party  had 
bound  himself  under  seal  to  pay  the  amount  in  which  case  debt 
would  undoubtedly  lie.  The  law  esteems  this  an  obligation  created 
by  the  highest  kind  of  specialty.  Indeed,  if  debt  would  not  lie  in 
this  case,  it  is  inconceivable  how  assumpsit  could.  There  is  no  pre- 
tense of  any  express  promise,  and  if  a  promise  is  to  be  implied,  it 
must  be  because  there  exists  a  legal  liability,  independent  of  any 
promise  sufficient  to  sustain  one.  Now  the  very  notion  of  a  collateral 
undertaking  is,  that  there  exists  no  legal  liability,  independent  of 
the  promise  to  create  a  duty.  And  if  there  exists  a  duty  sufficient 
to  raise  a  promise,  then  it  is  sufficient  to  sustain  an  action  of  debt. 
Upon  the  most  mature  reflection  I  am  of  opinion  that  an  action  of 
debt  well  lies  in  this  case.^ 

*  In  Elliott  V.  Gibson,  lo  B.  Mon.  (Ky.)  438  (1850),  where  assumpsit  was 
brought  upon  the  liability  of  the  owner  of  an  escaped  slave  to  pay  a  statutory 
reward,  if  he  received  the  slave  back,  the  court  said  (p.  439)  :  "A  statute  is 
in  some  respects  considered  a  specialty,  and  debt  is  frequently,  perhaps  gen- 
erally, the  remedy  prescribed  for  the  recovery  of  any  money  due  to  the  plain- 
tifif  under  its  provisions  under  contract  or  quasi-contract ;  but  when  the  stat- 
ute does  not  prescribe  the  remedy,  assumpsit  may  be  supported,  the  plaintiff 
not  being  by  it  restricted  to  any  particular  remedy:  (i  Chitty's  Pleadings, 
120;  Buller,  N.  P.,  129)."  See  also,  (assumpsit)  Central  Bridge  Trans.  Co. 
V.  Abbott,  4  Cush.  (Mass.)  473  (1849).  and  Augner  v.  Mayor.  14  App.  D.  (N. 
Y.)  461  (1897),  where  it  is  said  (p.  466'),  speaking  of  the  action  under  the  re- 
formed procedure :  "This  action  is  upon  what  has  been  aptly  termed  a  quasi- 
contract.  It  is  not  upon  a  genuine  contract,  that  is,  an  agreement,  in  fact,  be- 
tween plaintiff  and  defendant,  either  express  or  implied.  It  is  simply  upon  a 
statutory  liability,  which  is  sufficient  to  sustain  an  action  analogous  to  what 
was  formerly  called  assumpsit." 

In  Steamship  Co.  v.  Joliffe,  2  Wall./U.  S.)  450  (1864},  plaintiff  broughtan 
action  to  recover  under  a  statute  which  allowed  half-pilotage  fees  to  a  pilot 
whose  services  were  tendered  and  declined.  The  statute  was  later  repealed. 
The  court  said  (p.  457)  :  "The  claim  of  the  plaintiff  below  for  half-pilotage 
fees  resting  upon  a  transaction  regarded  by  the  law  as  a  quasi-contract,  there 
is  no  just  ground  for  the  position  that  it  fell  with  the  repeal  of  the  statute 
under  which  the  transaction  was  had.  When  a  right  has_  arisen  upon  a  con- 
tract, or  a  transaction  in  the  nature  of  a  contract  authorized  by  statute,  and 


lO  STATUTORY    DUTY. 

HARRIS  V.  CHRISTIAN. 
10  Pa.  St.  233. — 1849. 

Assumpsit  for  work  and  labor  done.  Pleas,  non-assumpsit  and 
the  statute  of  limitations.  The  claim  was  for  fees  earned  by  the 
plaintiff's  intestate,  who  was  as  alderman  a  magistrate  of  Philadel- 
phia. In  many  instances  the  suits  were  ended  more  than  six  years 
before  this  action  was  brought.  His  honor  instructed  the  jury  that 
the  plaintiff  could  recover  in  all  cases  where  there  had  been  a  judg- 
ment recovered.  2.  That  the  statute  was  not  a  bar,  as  the  claim 
was  for  a  debt  of  record. 

Rogers,  J. — We  see  nothing  wrong  in  the  trial  except  the  answer 
of  the  court  to  the  defendant's  fifth  point.  The  court  was  requested 
to  instruct  the  jury  that  the  statute  of  limitations  is  a  bar  in  all 
cases  in  which  the  services  were  rendered  more  than  six  years  be- 
fore the  death  of  the  alderman.  The  court  refused  to  give  this  in- 
struction, under  the  erroneous  idea  that  the  action  was  founded  on 
a  claim  of  record,  and  not  a  contract.  Although  the  docket  of  the 
justice  is  evidence  to  charge  the  defendant  with  the  costs  of  the 
original  writ,  subpoena,  and  execution,  yet  it  is  not  a  debt  of  rec- 
ord, but  the  evidence  of  a  debt,  from  which  the  law  will  imply  a 
promise  to  pay.  And  such  was  the  opinion  of  the  court  in  Lyon  v. 
McManus,  4  Bin.  167.  The  action  to  recover  the  fees  in  that  case 
was  assumpsit  on  an  implied  contract,  and  it  was  there  held  that 
where  a  statute  gives  fees  the  law  implies  a  promise  to  pay  by  the 
person  to  whom  the  service  is  rendered.  The  plea  of  the  statute 
of  limitations  is  therefore  a  good  plea.  The  suit  is  brought  against 
the  plaintiff  [defendant]  to  recover  for  services  rendered  him  in  the 
suits  before  the  alderman.  He  must  look  to  the  defendant  for  in- 
demnity. It  may  be  proper  to  add  that  the  suits  are  terminated 
within  the  meaning  of  Lyon  v.  McManus,  on  the  rendition  of  the 
several  jud.gtnents.  We  are  further  of  opinion  that  the  costs  may  be 
recovered  on  a  declaration  for  work  and  labor  done,  and  goods  sold 
and  delivered.  No  injury  can  result  to  the  defendant  from  the  gen- 
erality of  the  counts,  as  he  may  have  a  bill  of  particulars  on  demand. 
Judgment  reversed  and  a  venire  de  novo  awarded. 

has  been  so  far  perfected  that  nothinsr  remains  to  be  done  by  the  party  assert- 
injT  it,  the  repeal  of  the  statute  docs  not  affect  it,  or  an  action  for  its  enforce- 
ment.   It  has  become  a  vested  right  which  stands  independent  of  the  statute." 


STATUTORY    DUTY.  II 


INHABITANTS  OF  MILFORD  v.  COMMONWEALTH. 

144  Mass.  64.— 1887. 

Field,  J. — The  question  of  law  to  be  decided  is  whether  the  claim 
that  the  commonwealth  reimburse  to  the  town  the  expenses  incurred 
in  the  support  of  a  state  pauper,  under  the  Pub.  Stats.,  c.  86,  §§  25, 
26,  is  a  claim  which  is  founded  upon  a  contract  for  the  payment  of 
money,  within  the  meaning-  of  the  statute  of  1879,  c.  255  (Pub. 
Stats.,  c.  195).  See  Stats.  i'865,  c.  162 ;  1869,  c.  12 ;  1879,  c.  291,  §  3. 

The  Court  of  Claims  of  the  United  States,  under  statutes  which 
give  it  jurisdiction  to  hear  and  determine  "all  claims  founded  upon 
any  law  of  congress,  ...  or  upon  any  contract,  expressed  or 
implied,  with  the  government  of  the  United  States,"  etc.,  has  heard 
and  determined  claims  for  salaries  or  pay  established  by  a  law  of 
the  United  States,  and  these  have  been  sometimes  spoken  of  as 
claims  founded  on  contract,  although  it  is  not  clear  that  they  ought 
not  to  be  regarded  as  claims  founded  upon  a  law  of  the  United 
States.  U.  S.  Rev.  Stats.,  §  1059.  Patton  v.  United  States,  7  Ct.  of 
CI.  362,  371  ;  French  v.  United  States,  16  Ct.  of  CI.  419;  Collins  v. 
United  States,  15  Ct.  of  CI.  22;  Mitchell  v.  United  States,  18  Ct.  of 
CI.  281,  s.  c.  109  U.  S.  146;  United  States  v.  Langston,  118  U.  S. 

389. 

In  matters  of  procedure,  penalties  have  usually  been  regarded  as 
debts.  In  the  Pub.  Stats.,  c.  167,  §  i,  actions  for  penalties  are  ex- 
cluded from  actions  of  contract,  and  are  included  in  actions  of  tort, 
but  actions  under  statutes  to  recover  for  money  expended  have 
usually  been  actions  of  contract.  New  Salem  v.  Wendell,  2  Pick. 
341;  Oakham  v.  Sutton,  13  Met.  192;  Amherst  v.  Shelbume,  11 
Gray  107;  Wenham  v.  Essex,  103  Mass.  117. 

The  law  regards  the  money  as  expended  at  the  implied  request  of 
the  defendant,  and  a  promise  to  pay  the  money  is  said  to  be  implied 
from  the  liability  created  by  the  statute.  A  contract  may  be  ex- 
pressly made,  or  a  contract  may  be  inferred  or  implied  when  it  is 
found  that  there  is  an  agreement  of  the  parties  and  an  intention  to 
create  a  contract,  although  that  intention  has  not  been  expressed  in 
terms  of  contract ;  in  either  case,  there  is  an  actual  contract.  But  a 
contract  is  sometimes  said  to  be  implied  when  there  is  no  intention 
to  create  a  contract,  and  no  agreement  of  parties,  but  the  law  has 
imposed  an  obligation  which  is  enforced  as  if  it  were  an  obligation 
arising  ex  contractu.  In  such  a  case,  there  is  not  a  contract,  and  the 
obligation  arises  ex  lege. 

We  are  of  opinion  that  the  Stat,  of  1879,  c.  255,  was  not  in- 
tended to  give  to  the  superior  court  jurisdiction  over  obligations 
for  the  payment  of  money  imposed  by  statute  upon  the  common- 
wealth. There  are  many  such  obligations,  but  they  are  not  within 
any  of  the  definitions  of  a  contract,  all  of  which  require  a  consent 
or  agreement  of  the  parties.    These  statutory  obligations  are  per- 


12  OFFICIAL   DUTY. 

formed  by  the  various  officers  of  the  commonwealth,  or  by  the  legis- 
lature. In  one  case,  at  least,  there  is  a  remedy  by  a  petition  in  the 
nature  of  a  petition  of  right,  to  be  filed  in  the  supreme  judicial 
court.  Pub.  Stats.,  c.  13,  §  64.  In  most  cases,  however,  no  judicial 
remedy  against  the  commonwealth  has  been  provided,  and  the  com- 
monwealth cannot  be  sued  in  its  own  courts  without  clear  statutory 
authority. 

We  think  that  the  Pub.  Stats.,  c.  195,  must  be  confined  to  actual 
contracts  made  by  the  commonwealth  for  the  payment  of  money, 
and  we  are  not  now  required  to  determine  whether  they  must  be 
express  contracts. 

Exceptions  overruled. 


B.     Official  Duty. 
BODENHAMER  v.  BODENHAMER. 

6  Humph.   (Tenn.)  264. — 1845. 

Reese,  J. — The  defendant  sued  the  plaintiff  in  error  by  warrant 
or  summons  before  a  justice  of  the  peace,  "in  a  plea,"  as  the  sum- 
mons says,  "of  debt  under  one  hundred  dollars."  The  justice 
gave  judgment  for  the  plaintiff  below,  for  the  sum  of  forty-five 
dollars.  The  defendant  appealed  to  the  circuit  court,  where  a  ver- 
dict was  rendered  against  him  for  about  the  same  amount. 

The  defendant  below  was  an  officer,  and  had  in  his  hands  an  exe- 
cution in  favor  of  the  plaintiff",  which  he  levied  upon  property  of  the 
execution  debtor,  sufficient  to  satisfy  the  execution.  It  did  not  ap- 
pear whether  he  had  collected  the  money  or  not.  It  seems  that  the 
chief  controversy  in  the  circuit  court,  as  here,  related  to  the  form 
of  action,  and  to  whether  debt  would  lie.  The  court  charged  the 
jury  that  the  officer  could  not  be  held  liable  on  the  ground  of  negli- 
gence or  malfeasance  in  that  form  of  action ;  but  that  if  he  had  col- 
lected the  money,  or  levied  the  execution  upon  property  sufficient 
to  satisfy  the  execution,  as  that  would  discharge  the  execution 
debtor,  the  defendant  would  become  liable  for  the  amount  of  the 
execution,  and  the  action  of  debt  might  be  maintained  to  enforce 
such  legal  liability. 

We  arc  of  opinion  that  this  part  of  the  charge  is  correct,  namely : 
that  the  collection  of  the  money  or  a  levy  upon  personal  property 
sufficient  to  satisfy  the  execution,  will  maintain  the  action  of  debt 
against  the  officer ;  but  we  are  further  of  opinion  that  as  this  case 
presented  itself  at  the  trial  in  the  circuit  court  and  was  for  an 
amount  liolow  fifty  dollars,  and  within  the  jurisdiction  of  the  magis- 
trate, if  there  had  been  doubt  whether  the  action  of  debt  would  He, 
it  was  not  necessary  to  hold  that  that  was  the  form  of  action  from 
anything    said  in  the  warrant  or  summons.     The  several  forms  of 


OFFICIAL   DUTY.  I3 

action  and  the  rules  which  govern  them  cannot  he  enforced  and 
preserved  in  suits  before  justices.  So  that  we  have  held  at  this  term 
and  heretofore  that  in  such  cases  the  statutes  of  limitation  will  be 
applied  to  the  evidence  and  substance  of  the  case,  and  not  to  any 
words  indicating  a  form  of  action  which  the  magistrate  may  choose 
to  use  in  his  summons  or  warrant.  These  words  "of  plea  of  debt" 
must  be  moulded  to  apply  to  accounts,  assumpsit,  to  damages  for 
non-compliance  W'ith  a  contract,  or  legal  duty,  etc.  If  held  to  the 
true  meaning  of  technical  words  used  by  them  these  domestic  tribu- 
nals would  involve  the  afifairs  of  society  in  more  than  the  confusion 
and  difficulty  necessarily  incident  to  the  administration  of  the  laws 
by  persons  being  so  imperfectly  acquainted  with  them. 

Let  the  judgment  be  affirmed.^ 

^  In  Speake  v.  Richards,  Hob.  206  (1618),  the  sheriff  had  made  the  levy  and 
return,  but  did  not  pay  the  money;  and  "the  first  question  in  this  case  was 
whether  the  action  of  debt  would  lie,  because  there  was  no  contract  between 
the  plaintiff  and  the  sheriff.  But  that  was  resolved  by  the  court  that  it  would 
lie;  for  though  there  were  no  actual  contract  yet  there  was  a  kind  of  contract 
in  law,  so  it  is  ex  quasi  contractu.  And  therefore  upon  damages  recovered  in 
an  action  of  trespass,  the  plaintiff  shall  have  an  action  of  debt;  and  by  the 
same  reason  when  the  money  is  levied  by  the  sheriff,  so  as  the  action  ceased 
against  the  defendant,  the  same  action  is  ipso  facto  by  law  transferred  to  the 
sheriff,  having  both  the  judgment  to  make  it  a  debt,  as  before,  and  the  levy  to 
make  him  answerable." 

Further  as  to  recovery  upon  an  official  duty,  and  the  appropriate  action,  see 
the  following:  Debt  allowed  against  a  sheriff, — Perkinson  v.  Gilford,  Cro.  Car. 
539  (1640)  ;  Ruggles  v.  Beikie,  3  O.  S.  Upper  Can.  K.  B.  276  (1833)  ;  Neal  v. 
Haygood,  i  Ga.  514  (1846).  Indebitatus  assumpsit  allowed  against  a  sheriff, 
— Overton  v.  Hudson,  2  Wash.  (Va.)  172  (1796).  Assumpsit  not  allowable 
against  an  officer,  McMillan  v.  Eastman,  4  Mass.  378  (1808)  ;  Bailey  v.  Butter- 
field,  14  Me.  112  (1836)  ;  not  allowable  unless  'plaintiff  has  an  instant  right  to 
moneys  in  the  hands  of  the  officer,  Maddox  v.  Kennedy,  2  Rich.  L.  (S.  C.) 
102  (1845).  Previous  demand  upon  the  sheriff  held  not  necessary,  Nelson  v. 
Kerr,  59  N.  Y.  224  (1874). 

That  recovery  in  such  case  is  founded  upon  a  record  is  held  in  Cockram  v. 
Welby,  2  Show.  79  (1679),  reported  as  follows:  "Debt  against  the  defendant, 
having  been  sheriff  of  the  county  of  [Lincoln]  and  levied  money  on  a  iicri 
facias  sued  by  the  plaintiff  on  a  judgment  he  had  obtained  against  J.  S.  The 
defendant  pleads  the  statute  of  limitations.  The  plaintiff  demurs.  The  ques- 
tion was,  if  debt  lies  against  a  sheriff  for  money  levied  on  a  iieri  facias  before 
the  return  of  the  writ.  And  held  that  it  does,  else  an  inconvenience  would 
follow  that  the  sheriff  should  take  advantage  of  his  own  wrong,  viz. :  not  re- 
turning the  writ.  And  then,  whether  this  action  is  within  the  statute  of  limi- 
tations? And  held  not,  for  though  it  be  not  a  matter  of  record  till  the  writ 
be  returned,  yet  it  is  founded  upon  a  record,  and  has  a  strong  relation  to  it." 
For  reports  of  the  earlier  consideration  of  Cockram  v.  Welby,  see  i  Mod.  245 
(1677)  ;  2  Mod.  212  (1677)  ;  Freeman,  236  (1677). 


14  CUSTOMARY   DUTY. 

C.     Customary  Duty. 
BANK  OF  ORANGE  v.  BROWN  and  others. 

3  Wend.  158. — 1829. 

Savage,  Ch.  J. — This  is  an  action  on  the  case  against  six  defend- 
ants as  common  carriers,  alleged  to  be  the  owners  of  the  steamboat 
Constellation,  charged  in  the  first  eight  counts  of  the  declaration 
with  having  received  bank  bills  to  a  large  amount  for  transporta- 
tion from  the  city  of  New  York  to  the  village  of  Newburgh,  which 
it  is  averred  were  lost  through  the  want  of  due  care,  and  by  the 
negligent  and  improper  conduct  of  the  defendants  and  their  serv- 
ants. The  ninth  count  is  in  trover,  to  which  the  defendants  have 
pleaded  the  general  issue.  To  the  first  eight  counts  they  have 
pleaded  in  abatement  that  fifty-four  other  persons,  together  with 
the  defendants,  are  joint  owners  and  proprietors  of  the  steamboat 
Constellation,  and  are  jointly  liable  for  any  damage  the  plaintiffs 
may  have  sustained.  The  plaintiffs  have  demurred,  and  the  ques- 
tion presented  for  adjudication  is,  whether  it  is  necessary  to  join  all 
the  joint  owners  in  this  suit? 

It  is  not  denied  that  in  an  action  against  joint  contractors  as 
such,  all  must  be  joined,  and  if  the  action  be  brought  against  a  part 
only  those  who  are  sued  may  plead  in  abatement  the  non- joinder 
of  the  other  joint  contractors.  Nor  is  it  denied  that  in  an  action 
for  a  tort  the  plaintiff  may  prosecute  all  or  any  portion  of  those  con- 
cerned in  such  tort.  But  an  action  on  the  case  against  common 
carriers,  upon  the  custom  of  the  realm,  seems  in  England  not  to  be 
considered  always  as  belonging  entirely  to  the  class  of  actions  aris- 
ing ex  contractu,  nor  to  those  arising  ex  delicto,  but  is  said  some- 
times to  be  a  case  arising  ex  delicto  quasi  ex  contractu. 

Every  person  who  undertakes  to  carry,  for  a  compensation,  the 
goods  of  all  persons  indifferently  is,  as  to  the  liability  imposed,  to 
be  considered  a  common  carrier.  There  is  an  implied  undertaking 
on  his  part  to  carry  the  goods  safely,  and  on  the  part  of  the  owner 
to  pay  a  reasonable  compensation.  No  special  agreement  is  neces- 
sary to  enable  the  owner  to  maintain  assumpsit  against  the  carrier 
for  breach  of  his  duty,  nor  to  enable  the  carrier  to  maintain  as- 
sumpsit for  his  compensation.  There  is  therefore  a  perfect  contract 
implied  between  the  carrier  and  his  employer.  As  this  contract  is 
im])lied  by  law,  so  also  where  any  person  becomes  a  common  carrier 
by  professing  to  carry  for  all  persons  indifferently,  the  law  imposes 
upon  him  duties  and  liabilities  arising  out  of  his  public  employ- 
ment, and  imposes  upon  the  employer  the  liability  of  making  com- 
pensation. Considerations  of  public  policy,  and  not  agreements  be- 
tween the  parties,  have  ascertained  the  duties  and  fixed  the  limits 
of  the  liability  of  common  carriers,  and  for  any  omission  or  neglect 
of  duty  an  action  lies  without  stating  any  consideration  or  contract 


CUSTOMARY    DUTY.  1 5 

between  the  parties,  for  the  negligence  is  the  cause  of  the  action 
and  it  is  not  necessary  to  state  or  rely  upon  an  assumpsit.  Coggs  v. 
Bernard,  2  Ld.  Raym.  909.  There  may  be  and  often  is  a  special 
contract  made  with  a  common  carrier  and  such  special  contract  is 
to  control,  but  without  any  agreement  whatever,  the  bare  delivery 
of  goods  to  the  carrier  imposes  upon  him  the  obligation  to  dispose 
of  them  according  to  the  directions  which  he  receives,  and  a  neglect 
to  comply  with  such  directions  subjects  him  to  an  action,  because, 
says  Lord  Holt,  "a  neglect  is  a  deceit  to  the  bailor,  for  when  he  en- 
trusts the  bailee  upon  his  undertaking  to  be  careful  he  has  put  a 
fraud  upon  the  plaintiff  by  being  negligent,  his  pretense  of  care 
being  the  persuasion  that  induced  the  plaintiff  to  trust  him,  and  a 
breach  of  a  trust,  undertaken  voluntarily,  will  be  a  good  ground  for 
an  action."  2  Ld.  Raym.  919.  This  was  said  in  relation  to  Lord 
Holt's  sixth  class  of  bailments,  where  the  bailee  acts  without  com- 
pensation, but  applies  with  equal  if  not  greater  force  to  his  fifth 
classification,  where  the  bailee  acts  for  a  reward. 

The  form  of  action  against  a  common  carrier  is  a  question  which 
has  been  considerably  agitated  in  the  English  courts  and  has  been 
different  as  the  gravamen  was  supposed  to  arise  upon  a  breach  of 
public  duty,  or  the  breach  of  mere  express  promise.  Each  form  has 
its  advantages  and  disadvantages.  If  assumpsit  is  brought,  or  the 
action  be  laid  as  arising  upon  contract,  it  may  be  abated  for  the 
non-joinder  of  proper  parties,  but  it  survives  against  the  personal 
representative,  and  the  common  counts  may  be  joined  in  the  declara- 
tion. If  the  action  be  laid  as  arising  ex  delicto,  and  founded  on  the 
custom,  the  suit  does  not  abate  for  the  non- joinder  of  all  the  proper 
parties,  and,  in  a  proper  case,  a  count  in  trover  may  be  joined.  "The 
present  usage,"  says  Mr.  Jeremy,  in  his  Law  of  Carriers,  p.  117, 
"sanctions  the  principles  and  adopts  the  advantages  of  both  forms 
of  action  by  permitting  the  cases  to  be  considered  either  way,  as 
arising  ex  contractu  or  ex  delicto,  according  as  the  neglect  of  duty 
or  breach  of  mere  express  promise  is  meant  to  be  relied  upon  as  the 
cause  of  injury."  Mr.  Chitty  supposes  the  plaintiff  has  his  choice  of 
remedy  (i  Chitty's  PI.  75,  6),  and  that  in  an  action  founded  upon  the 
custom,  no  advantage  can  be  taken  of  the  non-joinder  of  defend- 
ants, and  refers  to  the  cases  which  were  cited  upon  the  argument. 
He  has  given  precedents  of  declarations  both  ways  (2  Chitty,  117 
and  271,  2),  according  to  which  the  declaration  in  this  case  is  clearly 
founded  upon  the  negligence  of  the  defendants  and  not  upon  an 
express  promise. 

It  may  be  useful  to  review  very  briefly  some  of  the  leading  cases 
in  the  English  courts  on  this  subject.  [Here  follows  a  discussion  of 
Boson  V.  Sandford,  2  Show.  478;  Rice  v.  Shute,  5  Burr.  261 1  ;  Ab- 
bott V.  Smith,  2  Bl.  947 ;  Dale  v.  Hall,  i  Wils.  281  ;'  Mitchel  v.  Tar- 

^  Apparently  the  first  reported  case  (1750)  in  which  an  assumpsit  implied  by 
law  was  allowed  against  a  common  carrier. — Ames,  History  of  Assumpsit,  2 
Harvard  Law  Rev.  63. 


l6  CUSTOMARY    DUTY, 

burt,  5  T.  R.  649 ;  Buddie  v.  Wilson,  6  T.  R.  369 ;  Govett  v.  Rad- 
nidge,  3  East  62;  Dickon  v.  Clifton,  2  Wils.  319;  Powell  v.  Layton, 
5  Bos.  &  Pul.  365;  Max  V.  Roberts,  12  East  89;  Bretherton  v. 
Wood,  3  Broad.  &  Bing.  54.] 

It  is  not  to  be  denied  that  there  has  been  a  difference  of  opinion 
between  some  of  the  English  judges  on  the  question  whether  an 
action  against  a  common  carrier  is  an  action  founded  on  a  tort  or 
on  a  contract.  Dallas,  chief  justice,^  seems  to  put  that  question  at 
rest,  by  bringing  it  to  a  very  fair  test :  does  it  require  the  plaintiff 
to  show  a  contract,  express  or  implied,  to  support  it?  The  action 
on  the  case  was  at  last  decided  to  be  for  a  tort  or  misfeasance.  This 
w^as  clearly  the  opinion  of  Lord  Mansfield  in  the  case  [Cowp.  375] 
cited  by  Ch.  Justice  IMansfield,^  and  all  the  cases  in  which  it  has  been 
held  necessary  to  join  all  the  joint  owners  have  been  said  by  dis- 
tinguished judges  to  be  clearly  actions  upon  a  promise.  Much  of  the 
confusion  has  probably  grown  out  of  the  forms  of  declaring  in  some 
of  the  cases,  w^here  it  is  difficult  to  determine  whether  the  promise 
and  undertaking  often  stated  in  the  count,  or  the  custom  of  the 
realm,  also  stated,  is  intended  by  the  pleader  to  be  the  foundation  of 
the  action. 

I  apprehend  the  true  rule  now  is,  that  an  action  solely  upon  the 
custom  is  an  action  of  tort ;  that  in  such  action  all  or  any  number  of 
the  owners  of  a  vessel,  coach,  or  any  kind  of  conveyance  used  by 
com.mon  carriers,  may  be  sued,  and  judgment  may  be  rendered  on  a 
verdict  against  all  or  a  part  only  of  those  against  whom  the  action 
is  brought ;  the  plaintiff  has  his  choice  of  remedies,  either  to  bring 
assumpsit  or  case,  and  that  when  one  or  the  other  action  is  adopted 
it  must  be  governed  by  its  own  rules.  But  if  the  plaintiff  states  the 
custom,  and  also  relies  on  an  undertaking,  general  or  special,  as  in 
Boson  V.  Sandford  and  some  others,  then  the  action  may  be  said  to 
be  ex  delicto  quasi  ex  contractu,  but  in  reality  is  founded  on  the 
contract  and  to  be  treated  as  such. 

In  Allen  v.  Sewall,  2  Wendell  338,  in  giving  the  opinion  of  the 
court,  I  remarked  that  all  the  co-partners  should  have  been  sued,  as 
the  action  was  quasi  ex  contractu.  It  was  unnecessary  in  that  case 
to  say  anything  on  that  point,  as  no  plea  in  abatement  had  been 
pleaded,  and  upon  further  examination  I  am  satisfied  the  remark 
is  incorrect  for  the  reasons  above  assigned. 

It  is  certainly  now  settled  in  England  that  an  action  against  a 
common  carrier  upon  the  custom  is  founded  on  a  breach  of  duty, 
that  it  is  a  tort  or  misfeasance,  and  it  follows  that  it  is  joint  or  sev- 
eral. 

In  the  case  now  under  consideration  all  the  counts  are  substan- 
tially upon  the  custom  and  in  case,  though  some  of  them  contain  ex- 
pressions similar  to  those  used  in  actions  of  assumpsit;  but  there  is 

'  Tn  I'nlliorton  v.  WnocI,  supra. 
*In  Powell  V.  Layton,  supra. 


CUSTOMARY    DUTY.  I7 

none  of  them  which  reHcs  upon  any  undertaking^  of  the  defendants, 
and  they  all  state  the  p^ravamen  to  be  a  breach  of  duty. 

I  am  therefore  of  opinion  that  an  action  on  the  case  against  a 
common  carrier  belongs  to  the  class  of  actions  arising  upon  a  tort  or 
misfeasance  ex  delicto,  and  that  such  actions  being  as  well  several 
as  joint,  it  is  unnecessary  to  join  all  the  joint  tort-feasors.  The  de- 
murrer is  well  taken,  and  the  plaintifif  is  entitled  to  judgment  of 
respondeas  ouster. 

Justices  Sutherland  and  Marcy  did  not  hear  the  argument  of 
this  case  and  gave  no  opinion.^ 


ROCKWELL  V.  PROCTOR.       u 

39  Ga.  105. — 1869. 

Warner,  J. — This  was  an  action  instituted  by  the  plaintiff  in  a 
justice-court  against  the  defendant,  as  an  innkeeper,  to  recover 
the  value  of  a  lost  overcoat,  proven  to  be  worth  $30.00.  The  case 
was  brought  before  the  superior  court  by  writ  of  certiorari,  alleging 
that  the  justice-court  erred  in  not  dismissing  the  case  for  want  of 
jurisdiction,  and  that  the  verdict  was  contrary  to  law  and  without 
evidence  to  support  it.  The  superior  court  sustained  the  certiorari 
on  both  grounds,  which  decision  of  the  superior  court  is  assigned  for 
error  here. 

This  was  not  an  action  of  trespass  but  an  action  upon  the  implied 
contract  of  the  innkeeper.  There  is  always,  in  law,  an  implied  con- 
tract with  a  common  innkeeper,  to  secure  his  guests'  goods  in  his 
inn:  3d  Bl.  Com.,  164.  Private  duties  may  arise,  either  from  stat- 
ute, or  flow  from  relations  created  by  contract,  express  or  implied. 
The  violation  of  any  such  specific  duty,  accompanied  with  damages, 
gives  a  right  of  action.  When  a  transaction  partakes  of  the  nature 
both  of  a  tort  and  a  contract,  the  party  plaintiff  may  zvaive  the  one 
and  rely  solely  upon  the  other:  Revised  Code,  §§  2903,  2904.  The 
justice-court  had  jurisdiction  of  the  subject-matter  of  the  suit  in 
this  case,  the  more  especially  as  the  defendant  plead  to  the  merits  of 
the  action  without  excepting  to  the  jurisdiction  of  the  court :   Code, 

3409-  . 

An  innkeeper  is  bound  to  extraordinary  diligence  in  preserving 
the  property  of  his  guests  entrusted  to  his  care,  and  is  liable  for  the 
same  if  stolen,  when  the  guests  have  complied  with  all  reasonable 

^  Accord,  that  the  action  may  be  either  contract  or  tort.  Wood  v.  Milwaukee 
&  St.  Paul  Ry.,  32  Wis.  398  (1873). 

"The  earliest  reported  case  of  indebitatus  assumpsit  upon  a  customary  duty 
seems  to  be  City  of  London  v.  Goree,  2  Lev.  174,  i  Vent.  298.  3  Keb.  677, 
Freem.  433  s.  c."  [1676]. — Ames,  Hist,  of  Assumpsit,  2  Harvard  Law  Rev.  65. 
"Woodruff's  Cases — 2 


16  CUSTOMARY    DUTY. 

rules  of  the  inn :  Code,  2091.  It  is  not  necessary  to  show  actual  de- 
livery to  the  innkeeper ;  depositing  the  goods  in  a  public  room  set 
apart  for  such  articles  is  a  delivery  to  the  innkeeper :  Code  2092 ; 
Sasseen  &  Whitaker  v.  Clark,  ■}>7  Ga.  R.  242.  The  overcoat  was 
deposited  on  a  shelf  in  the  hotel,  as  directed  by  the  person  in  charge 
thereof  by  the  permission  of  the  innkeeper,  during  his  absence.  It 
was  the  duty  of  the  innkeeper,  either  by  himself  or  competent  serv- 
ants or  agents,  to  take  charge  of  the  goods  of  his  guests,  and  if  he 
allowed  persons  to  officiate  in  that  capacity  during  his  absence  in 
his  hotel,  he  is  responsible  for  their  conduct  and  for  the  loss  of  the 
goods  deposited  therein  as  directed  by  such  servants  or  agents ;  and 
it  is  no  sufficient  answer  for  the  innkeeper  to  say,  after  the  goods  are 
lost,  that  the  persons  whom  he  permitted  to  officiate  in  that  capacity 
during  his  absence  were  not  his  servants  or  agents.  In  our  judg- 
ment the  verdict  of  the  jury  in  the  justice  court  was  right,  under 
the  law  and  facts  of  the  case,  and  that  the  court  below  erred  in  sus- 
taining the  certiorari.  Let  the  judgment  of  the  court  below  be  re- 
versed.^ 

^Accord,  Morgan  v.  Ravey,  6  H.  &  N.  265  (1861)  ;  Dickinson  v.  Winchester. 
4  Cush.  114  (1849), — assumpsit  against  an  innkeeper  for  loss  of  a  trunk  by  a 
hackman  in  the  employ  of  the  innkeeper  to  carry  between  railroad  station  and 
hotel. 

In  Stanley  v.  Bircher,  78  Mo.  245,  an  action  by  a  guest  against  the  executor 
of  an  innkeeper  for  damages  for  personal  injuries  sustained  by  the  guest  by 
falling  down  a  shaft  in  the  hotel,  the  court  said :  "It  is  claimed  by  counsel 
for  plaintiff  that  the  action  is  for  the  breach  of  a  contract,  and  that  it  is  not 
an  action  on  the  case  for  injuries  to  the  person.  The  allusions  in  the  petition 
to  the  formal  contract  between  the  plaintiff  and  the  proprietor  of  the  hotel, 
whereby  the  plaintiff  became  a  guest  in  the  hotel,  cannot  change  the  true 
character  of  the  action.  In  setting  forth  an  action  of  trespass  on  the  case  the 
pleader  often  finds  it  proper,  although  not  absolutely  necessary,  to  mention 
matters  of  contract  connected  with  the  tort  by  way  of  inducement  and  ex- 
planation. In  this  case  the  relation  of  host  and  guest,  which  originated  in 
contract,  explains  how  the  defendant's  testator  came  to  owe  the  plaintiff  a 
duty.  That  duty,  however,  the  law  imposes.  It  is  a  public  duty  which  is  not 
defined  by  the  contract.  Neither  can  the  proprietor  relieve  himself  from  that 
duty  by  contract.  The  action  in  truth  is  for  a  violation  of  the  duty  which  the 
law  imposes  independent  of  contract.  Neither  the  damages  nor  the  scope  of 
the  action  can  be  measured  or  limited  by  the  contract." 


Part  III. 

Recovery  Upon  the  Doctrine  that  One  Person 
Shall  not  be  Allowed  to  Enrich  Him- 
self Unjustly  at  the  Expense 
OF  Another. 

A.     Introductory — Quasi-Contract  and  True  Con- 
tract Distinguished. 

COLUMBUS,  HOCKING  VALLEY  &  TOLEDO  RY.  CO.  v. 

GAFFNEY. 

65  Ohio  St.  104. — 1901. 

MiNSHALL,  C.  J. — The  real  question  in  the  case,  and  the  only  one 
we  shall  consider,  aside  from  one  of  pleading  and  evidence,  is 
whether,  on  the  admitted  facts,  the  plaintiff  below,  Gaffney,  was  en- 
titled to  recover  of  the  defendant  on  an  implied  contract  the  value 
of  the  services  for  which  he  claims  compensation.  The  plaintiff  had 
a  contract  with  the  general  government,  by  which,  for  a  compensa- 
tion, he  was  bound  to  carry  the  mails  to  and  from  the  depot  of  the 
Columbus,  Hocking  Valley  &  Toledo  Railway  Company  to  the  post 
office  at  Lancaster,  Ohio,  and  also  to  and  from  the  Cincinnati  &  Mus- 
kingum Valley  Railway  Co.  at  the  same  place.  These  two  roads 
at  this  point  form  a  junction,  the  roads  running  on  opposite  sides 
of  a  common  depot,  within  forty  feet  of  each  other.  Each  of  these 
roads  had  a  contract  with  the  government  for  carrying  mails  over 
its  road,  by  which  each  was  required  to  transfer  the  mails  over  its 
road  to  that  of  the  other,  when  required  in  the  course  of  transit,  as 
the  distance  between  them  was  less  than  eighty  rods,  the  contract 
with  the  government  imposing  that  duty  on  each  when  the  distance 
between  them  is  no  greater.  During  the  entire  period  for  which 
compensation  was  claimed  this  work  had  been  performed  by  the 
plaintiff, — a  period  of  over  six  years, — part  of  the  time  under  a  con- 
tract of  the  government  with  one  Turner,  of  which  the  plaintiff  was 
the  assignee,  and  the  residue  of  the  time  under  a  contract  with 
himself ;  the  terms  of  both  contracts  being  alike.  The  plaintiff  dur- 
ing the  entire  time  supposed  that  it  was  his  duty,  under  his  contract 

19 


-r 


20  QUASI-CONTRACT    AND    TRUE   CONTRACT   DISTINGUISHED. 

with  the  government  in  regard  to  carrying  the  mails  between  the 
depot  and  the  post  office,  to  make  this  transfer  between  the  two 
roads,  and  performed  the  service  under  this  impression  until  he  was 
informed  by  an  agent  of  the  government  that  it  was  not  his  duty, 
and  was  ordered  to  desist  from  doing  so.  No  demand  for  compen- 
sation was  made  until  he  had  received  this  order  from  the  govern- 
m.ent  agent,  and  he  at  no  time  supposed  that  he  was  entitled  to  any 
until  this  time ;  nor  was  there  any  express  request  on  the  part  of  the 
company  or  its  agents  for  the  performance  of  the  service,  the  com- 
pany having  agents  of  its  own  at  the  depot,  who  should  have  per- 
formed the  service.  It  also  appears  that  at  the  time  Turner  assigned 
his  contract  to  the  plaintifif  he  informed  him  that  this  service  was  a 
part  of  his  duty  under  the  contract  with  the  government.  On  this 
state  of  facts  it  is  claimed  that  a  contract  should  be  implied  on  the 
part  of  the  defendant  to  pay  the  plaintiff  what  his  services  were 
reasonably  Vvorth  in  so  transferring  the  mails  for  the  defendant  at 
the  depot.  The  common  pleas  rendered  a  judgment  in  his  favor  for 
$603.58,  being  for  a  period  of  some  six  years,  and  the  judgment  was 
affirmed  on  error  by  the  circuit  court. 

There  is  some  confusion  in  the  statement  of  the  law  applicable  to 
what  are  frequently  called  "implied  contracts,"  arising  from  the  fact 
that  obligations  generically  different  have  been  classed  as  such,  not 
because  of  any  real  analogy,  but  because,  where  the  procedure  of 
the  common  law  prevails,  by  the  adoption  of  a  fiction  in  pleading — 
that  of  a  promise  where  none  in  fact  exists,  or  can  in  reason  be  sup- 
posed to  exist — the  favorite  remedy  of  implied  assumpsit  could  be 
adopted.  This  was  so  in  that  large  class  of  cases  where  suit  is 
brought  to  recover  money  paid  by  mistake,  or  which  has  been  ob- 
tained by  fraud.  Here  it  is  said  the  law  implies  a  promise  to  repay 
the  money,  when  it  was  well  understood  that  the  promise  was  a 
mere  fiction,  and  in  most  cases  without  any  foundation  whatever  in 
fact.  The  same  practice  was  adopted  where  necessaries  had  been 
furnished  an  insane  person,  or  a  neglected  wife  or  child.  In  all 
these  cases  no  true  contract  exists.  They  are,  by  many  authors, 
termed  "quasi-contracts,"  a  term  borrowed  from  the  civil  law.  In 
all  these  cases  no  more  is  meant  than  that  the  law  imposes  a  civil 
obligation  on  the  defendant  to  restore  money  so  obtained,  or  to  com- 
pensate one  who  has  furnished  necessaries  to  his  wife  or  child, 
where  he  has  neglected  his  duty  to  provide  for  them,  or,  by  reason 
of  mental  infirmity,  is  unable  to  obtain  them  for  himself.  But  con- 
tracts that  are  true  contracts  are  frequently  termed  implied  con- 
tracts,— as  where,  from  the  facts  and  circumstances,  a  court  or 
jury  may  fairly  infer  as  a  matter  of  fact  that  a  contract  existed  be- 
tween the  parties,  explanatory  of  the  relation  existing  between  them. 
Such  implied  contracts  are  not  generically  different  from  express 
contracts.  The  difference  exists  simply  in  the  mode  of  proof.  Ex- 
press contracts  are  proved  by  showing  that  the  terms  were  expressly 
agreed  on  by  the  parties,  while  in  the  other  case  the  terms  are  in- 
ferred as  a  matter  of  fact  from  the  evidence  offered  of  the  circum- 


QUASI-CONTRACT    AND    TRUE    CONTRACT   DISTINGUISHED.  21 

stances  surrounding^  the  parties,  makinf^  it  reasonable  that  a  con- 
tract existed  between  them  by  tacit  understanding.  In  such  cases 
no  fictions  are  or  can  be  indul.c^ed.  The  evidence  must  satisfy  the 
court  and  jury  that  the  parties  understood  that  each  sustained  to  the 
other  a  contractual  relation,  and  that  by  reason  of  this  relation  the 
defendant  is  indebted  to  the  plaintiff  for  services  performed  or  for 
goods  sold  and  delivered. 

In  the  leading-  case  of  Hertzog  v.  Hertzog,  29  Pa.  465,  the  dis- 
tinction is  clearly  stated  by  Judge  Lowrie.  After  quoting-  from 
Blackstone,  and  observing  that  his  language  is  open  to  criticism,  he 
says :  "There  is  some  looseness  of  thought  in  supposing  that  reason 
and  justice  ever  dictate  any  contracts  between  parties,  or  impose 
such  upon  them.  All  true  contracts  grow  out  of  the  intentions  of 
parties  to  transactions,  and  are  dictated  only  by  their  mutual  and 
accordant  wills.  When  the  intention  is  expressed,  we  call  the  con- 
tract an  express  one.  When  it  is  not  expressed,  it  may  be  inferred, 
implied,  or  presumed  from  circumstances  really  existing,  and  then 
the  contract,  thus  ascertained,  is  called  an  implied  one.  *  *  * 
It  is  quite  apparent,  therefore,  that  radically  different  relations  are 
classified  under  the  same  term,  and  this  often  gives  rise  to  indis- 
tinctness of  thought.  And  this  was  not  at  all  necessary  ;  for  we  have 
another  well-authorized  technical  term  exactly  adapted  to  the  ofifice 
of  making  the  true  distinction.  The  latter  class  are  merely  con-, 
structive  contracts,  while  the  former  are  only  implied  ones.  In  one 
case  the  contract  is  a  mere  fiction,  a  form  imposed  in  order  to  adapt 
the  case  to  a  given  remedy ;  in  the  other  it  is  a  fact  legitimately  in- 
ferred. In  c«ie  the  intention  is  disregarded ;  in  the  other  it  is  ascer- 
tained and  enforced.  In  one  the  duty  defines  the  contract ;  in  the 
other  the  contract  defines  the  duty."  The  subject  is  instructively 
treated  by  Professor  Keener  in  chapter  i  of  his  work  on  Quasi- 
Contracts.  He  expresses  the  difference  between  an  express  contract 
and  a  true  implied  contract  as  follows :  In  the  one  case  the  language 
of  contract  is  in  terms  used,  and  because  of  the  expressions  used  the 
contract  is  called  an  express  contract ;  whereas  in  the  other  case  the 
contract  is  established  by  the  conduct  of  the  parties,  viewed  in  the 
light  of  surrounding  circumstances,  and  is  called  a  contract  implied 
in  fact."  The  language  quoted  by  counsel  for  defendant  in  error 
from  Swan's  Treatise,  509,  that  "an  implied  contract  is  established 
by  proof  of  circumstances  showing  either  that  in  justice  or  honesty 
a  contract  ought  to  be  implied,  or  that  the  parties  intended  to  con- 
tract," is  doubtless  due  to  "the  looseness  of  thought"  on  the  subject 
to  which  the  learned  judge  above  refers.  The  language  is  quite 
appropriate  to  quasi  or  constructive  contracts,  frequently  classed 
with  implied  proper  contracts,  but  wholly  inapplicable  to  true  con- 
tracts. Swan  evidentlv  followed  the  language  of  Blackstone  that 
has  frequently  been  criticised. 

The  rule  of  evidence  applicable  to  the  proof  of  an  implied  con- 
tract is  accuratelv  stated  in  Abb.  Tr.  Ev.  358,  as  follows :  "In  gen- 
eral, there  must  be  evidence  that  defendant  requested  plaintiff  to 


22  QUASI-CONTRACT   AND   TRUE   CONTRACT   DISTINGUISHED, 

render  the  service,  or  assented  to  receiving  their  benefit,  under  cir- 
cumstances negativing  any  presumption  that  they  would  be  gratui- 
tous. The  evidence  usually  consists  in — First,  an  express  request 
pertaining  to  the  services;  or,  second,  circumstances  justifying  the 
inference  that  plaintiff,  in  rendering  the  services,  expected  to  be 
paid,  and  defendants  supposed,  or  had  reason  to  suppose,  and  ought 
to  have  supposed,  that  he  was  expecting  pay,  and  still  allowed  him 
to  go  on  in  the  service  without  doing  anything  to  disabuse  him  of 
this  expectation  ;  or,  third,  proof  of  benefit  received,  not  on  an  agree- 
ment that  it  was  gratuitous,  and  followed  by  an  express  promise  to 
pay." 

It  seems,  then,  clear  that  no  contract  can  be  inferred  from  the 
facts  in  this  case ;  for  it  does  not  appear  from  anything  in  the  case 
that  the  plaintifif  performed  the  services  for  which  he  sues  under  a 
contract  with  the  defendant  whereby  it  was  agreed  between  them 
that  he  should  be  compensated  for  his  services  by  the  defendant  in 
any  sum.  There  could  have  been  no  meeting  of  minds  on  any  of  its 
terms,  and  without  which  no  contract  can  exist,  whether  express  or 
implied.  During  all  this  time — some  six  years — in  which  he  was 
engaged  in  doing  the  work  the  plaintifif  supposed  that  it  was  his 
duty  to  do  it  under  his  contract  with  the  government.  He  did  not, 
therefore,  during  the  time,  regard  himself  as  performing  any  serv- 
ices for  the  defendant,  and  made  no  claim  against  it  for  compensa- 
tion until  after  he  had  been  informed  that  it  was  not  his  duty  to  do 
what  he  had  been  voluntarily  doing.  This  fact  negatives  the  existence 
of  any  contract,  express  or  implied,  having  existed  between  the  par- 
ties during  the  time  the  services  were  being  performed.  The  minds  of 
the  parties  could  not  have  met  on  the  subject  of  compensation,  when 
the  party  doing  the  work  had  no  idea  that  he  was  to  be  compensated 
by  the  defendant  at  the  time  the  work  was  done.  Under  such  cir- 
cumstances the  understanding  of  the  party  for  whom  the  work  was 
done  becomes  immaterial,  unless  it  had  been  so  communicated  to 
the  other  party  as  to  have  induced  the  performance  of  the  services, 
which  was  not  the  case  if  it  had  any  such  understanding.  But  there 
is  nothing  in  the  case  to  show  any  such  understanding  on  the  part 
of  the  company.  It  is  true  that  under  its  contract  with  the  govern- 
ment it  appears  that  the  transfer  of  mails  from  its  road  to  the  other 
was  one  of  its  obligations,  and  the  plaintiff,  in  attending  to  the 
matter,  performed  a  service  that  it,  through  its  agents,  should  have 
performed.  Rut  no  request  of  the  company  is  here  shown  by  impli- 
cation, since  the  company  had  agents  of  its  own  at  the  depot,  and 
the  plaintifif,  in  doing  what  he  did,  performed  services  that  should 
have  been  attended  to  by  the  emploves  of  the  company.  And  had 
any  claim  been  made  by  the  plnintifF  for  compensation,  or  had  the 
circumstances  indicated  that  he  would  make  such  claim,  doubtless 
the  companv  would  have  directed  its  own  agents  to  attend  to  the 
business.  This  shows  that  there  was  nothing  in  the  conduct  of  the 
plaintiff  that  indicated  a  purpose  on  his  part  to  make  a  claim  for 
compensation  at  the  time  the  work  was  performed,  and  that  the 


QUASI-CONTRACT   AND    TRUE    CONTRACT   DISTINGUISHED.  23 

company  did  not  re^^ard  itself  as  receivin<T^  services  from  him  for 
which  it  was  to  make  compensation.  In  no  view  of  the  case,  then, 
can  the  suit  of  the  plaintiff  be  maintained  ap^ainst  the  company  on 
the  f^round  of  an  implied  contract  to  pay  what  the  services  were 
reasonably  worth. 

Though  not  necessary  to  the  disposition  of  the  case,  it  may  be 
proper  to  notice  the  exception  of  the  defendant  to  the  admission  of 
the  evidence  offered  under  the  averments  of  the  petition,  the  claim 
being  that  the  petition  purports  to  be  upon  an  express  contract, 
while  the  evidence  offered  simply  tended  to  support  an  implied  one. 
We  do  not  think  there  was  error  in  this  regard.  The  substance  of 
the  averments  of  the  petition  is  that  for  a  period  of  over  six  years 
the  plaintiff  had  been  employed  by  the  defendant  "at  its  instance 
and  request"  to  transfer  mails  from  its  trains  to  the  trains  of  the 
Cincinnati  &  Muskingum  Valley  Railroad  Company,  at  Lancaster, 
Ohio.  There  is.  as  we  have  shown,  no  generic  difference  between 
an  express  contract  and  one  implied  from  circumstances.  The  plain- 
tiff was  not  required  to  state  the  character  of  the  evidence  on  which 
he  would  rely  to  support  the  averment  that  the  services  were  ren- 
dered under  a  contract  with  the  defendant.  It  was  therefore  compe- 
tent for  him  to  offer  the  circumstances  under  which  he  did  the  work 
in  support  of  his  averment  that  it  was  done  "at  the  instance  and  re- 
quest" of  the  defendant.  The  evidence  was  competent,  but  failed  in 
proof.  Judgment  reversed,  and  judgment  for  defendant.^ 

^  "There  is  a  class  of  cases  where  the  law  prescribes  the  rights  and  liabilities 
of  persons  who  have  not  in  reality  entered  into  any  contract  at  all  with  one 
another,  but  between  whom  circumstances  have  arisen  which  make  it  just  that 
one  should  have  a  right,  and  the  other  should  be  subject  to  a  liability,  similar 
to  the  rights  and  liabilities  in  certain  cases  of  express  contract.  Thus,  if  one 
man  has  obtained  money  from  another,  through  the  medium  of  oppression, 
imposition,  extortion,  or  deceit,  or  by  the  commission  of  a  trespass,  such  money 
may  be  recovered  back,  for  the  law  implies  a  promise  from  the  wrong-doer  to 
restore  it  to  the  rightful  owner,  although  it  is  obvious  that  this  is  the  very 
opposite  of  his  intention.  Implied  or  constructive  contracts  of  this  nature 
are  similar  to  the  constructive  trusts  of  courts  of  equity,  and  in  fact  are  not 
contracts  at  all.  Addison  on  Contracts,  22.  And  a  somewhat  similar  distinc- 
tion is  recognized  in  the  civil  law,  where  it  is  said:  "In  contracts  it  is  the 
consent  of  the  contracting  parties  which  produces  the  obligation ;  in  quasi- 
contracts  there  is  not  any  consent.  The  law  alone,  or  natural  equity  produces 
the  obligation  by  rendering  obligatory  the  fact  from  which  it  results.  There- 
fore these  facts  are  called  quasi-contracts,  because  without  being  contracts, 
they  produce  obligations  in  the  same  manner  as  actual  contracts."  i  Poth.  Ob. 
Ti.l  And  again  at  common  law.  says  Blackstone,  3  Bl.  Com.  165:  "If  any 
one  cheats  me  with  false  cards,  or  dice,  or  by  false  weights  or  measures,  or 
by  selling  me  one  commodity  for  another,  an  action  on  the  case  lies  against 
him  for  damages,  upon  the  contract  which  the  law  implies  that  every  trans- 
action is  fair  and  honest." — People  v.  Speir,  ^^  N.  Y.  144,  150. 


24  BENEFITS    CONFERRED    WITHOUT   REQUEST. 

B.     Recovery  for  Benefits  Conferred  Voluntarily. 

1.  IN  THE  ABSENCE  OF  CONTRACTUAL  AGREEMENT. 

a.    Without  Request. 
i.     In  General. 

INHABITANTS  OF  SOUTH  SCITUATE  v.  INHABITANTS 

OF  HANOVER. 

9  Gray  420. — 1857. 

Action  of  contract  to  recover  half  the  fees  paid  by  the  plaintiffs 
to  the  commissioners  appointed  by  the  governor  to  establish  the 
boundary  line  between  South  Scituate  and  Hanover,  under  the  re- 
solve of  1856,  c.  79,  which  provided  "that  the  said  towns  of  South 
Scituate  and  Hanover  shall  be  required  to  defray  the  expenses  of 
said  commission,  each  of  said  towns  paying  one-half  of  said  ex- 
penses." The  plaintiffs  had  paid  the  whole  fees,  without  being  re- 
quested by  the  defendants  so  to  do. 

BiGELovv,  J. — There  is  nothing  in  the  facts  of  this  case  from 
which  a  promise  by  the  defendants,  either  express  or  implied,  can 
be  inferred  to  pay  the  plaintiffs  the  money  sought  to  be  recovered  in 
this  action.  It  is  true  that  the  defendants  were  legally  liable,  under 
the  resolve  of  the  legislature  of  May  31,  1856,  to  pay  one-half  of 
the  expenses  of  the  commission  appointed  to  establish  the  boundary 
line  between  the  towns  of  South  Scituate  and  Hanover.  But  this 
was  a  liability  either  to  the  commissioners  or  to  the  commonwealth, 
and  not  to  the  plaintiffs.  There  is  no  provision  in  the  resolve,  au- 
thorizing or  requiring  the  plaintiffs  to  pay  the  whole  expenses,  and 
rendering  the  defendants  liable  for  one-half  thereof  to  the  plaintiffs. 
It  was  a  voluntary  payment  by  the  plaintiffs  of  a  debt  due  from  the 
defendants.  Such  payment  gives  no  cause  of  action.  It  falls  within 
the  well-settled  rule  of  law,  that  the  payment  of  the  debt  of  another 
raises  no  assumpsit  against  the  person  whose  debt  is  paid,  and  no 
action  will  lie  by  reason  of  such  payment,  tmless  a  request,  either 
express  or  implied,  to  make  the  payment  is  proved.  The  law  does 
not  permit  the  liability  of  a  party  for  a  debt  to  one  person  to  be 
shifted  so  as  to  make  him  debtor  to  another  without  his  consent. 
Winsor  v.  Savage,  9  Met.  348. 

Judgment  for  the  defendants.^ 

■  In  ITotchkiss  v.  Williams,  60  N.  Y.  Siipp.  168  (1899),  s.  c.  44  App.  D.  615, 
a  husband  had  pledged  stock  for  a  loan,  and  later  became  insane ;  while  in- 
sane he  assigned  the  stock  to  his  wife,  who  voluntarily  paid  the  loan  ;  it  was 
held  that  the  assignment  did  not  pass  title,  that  she  was  a  volunteer  in  paying 
the  lf;an  and  could  not  recover  from  his  estate  for  the  amount  paid. 


IN    GENERAL.  25 

HUNTER  &  CO.  V.  FELTON. 
6 1  Vt.  359. — 1889. 

The  action  was  general  assumpsit  by  S.  N.  Hunter  &  Co.  against 
L.  H.  Felton.  Pleas,  the  general  issue  and  offset.  Heard  on  ref- 
eree's report,  and  exceptions  of  both  parties  thereto.  The  court 
overruled  the  exceptions  to  the  report,  and  gave  judgment  for  the 
defendant  in  the  sum  of  $152.78,  with  interest  to  be  computed  by 
the  clerk.    Exceptions  by  both  parties. 

Ross,  J. — The  referee's  report  with  reference  to  items  66  and  67 
of  the  plaintiff's  specifications  is  somewhat  meager. 

1.  In  regard  to  66,  he  finds  that  the  logs  had  been  drawn  to  the 
pond,  about  one-half  mile  from  the  plaintiff's  mill,  for  the  purpose 
of  being  sawed  at  plaintiff's  mill.  From  this  fact,  and  from  the 
fact  that  the  defendant  received  the  lumber  when  sawed,  and  paid 
for  the  sawing  without  objection,  it  is  fairly  to  be  inferred  that  it 
was  mutually  understood  that  the  plaintiffs  were  to  take  the  logs 
from  the  place  where  they  were  left  on  the  pond,  and  manufacture 
them  into  lumber  at  their  mill.  The  logs  became  scattered.  We 
must,  in  the  absence  of  any  facts  found  to  the  contrary,  presume  it 
was  without  the  fault  or  neglect  of  the  plaintiffs.  The  plaintiffs 
notified  the  defendant  of  this  fact.  He  did  not  withdraw  the  under- 
standing that  they  were  to  go  forward  and  manufacture  them,  nor 
did  he  tell  them  that  he  would  gather  them,  nor  did  he  do  so.  The 
plaintiffs  then,  at  considerable  extra  expense,  gathered  and  manu- 
factured the  logs  into  lumber,  and  the  defendant,  without  objection, 
took  the  benefit  of  this  extra  labor  in  gathering  the  logs.  No  price 
had  been  agreed  upon  for  their  manufacture.  On  these  facts,  we 
think,  the  law  implies  a  contract  and  agreement  on  the  part  of  the 
defendant  to  pay  the  plaintiffs  a  reasonable  sum  for  gathering  and 
manufacturing  the  logs.  He  paid  for  manufacturing  them  without 
objection  or  complaint.  Paying  for  their  manufacture  without  ob- 
jection was  an  indorsement  of  their  right  to  take  the  logs  from  the 
place  they  did,  and  manufacture  them.  If  he  would  avoid  paying 
for  gathering  the  logs,  he  should  have  ignored  their  right  to  manu- 
facture them,  taking  them  in  their  scattered  condition.  He  cannot 
be  allowed  to  treat  their  necessary  labor  to  bring  the  logs  as  they 
were  then  situated,  into  manufactured  lumber,  in  part  proper  and 
rightful,  and  in  part  wrongful  and  unauthorized.  He  must  be  held 
to  adopt  or  reject  their  work  on  the  logs  in  whole.  This  item  we 
therefore  allow  to  the  plaintiffs. 

2.  In  regard  to  item  67,  the  referee  finds  that  the  defendant  had 
a  large  amount  of  lumber  piled  up  in  the  plaintiffs'  mill-yard,  which 
had  remained  there  over  a  year.  From  other  parts  of  the  report  it 
appears  that  they  were  paid  for  sawing  and  sticking  up  the  lumber, 
and  there  is  no  claim  made  but  that  it  was  understood  that  the  de- 
fendant had  the  right  to  have  it  remain  so  stuck  up  a  reasonable 


26  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

time.  After  it  had  remained  for  over  a  year,  the  plaintiffs  notified 
the  defendant  that  his  lumber  was  in  their  way,  and  that  they  must 
have  the  space  occupied  by  it  for  their  mill.  It  is  not  found  that  any 
time  was  specified  in  which  the  defendant  must  remove  it,  nor  that 
they  notified  him  that  they  should  charge  for  storage,  if  it  was  al- 
lowed to  remain  on  the  mill-yard  beyond  the  time  named.  Nor  is  it 
found  that  the  plaintiffs  were  accustomed  to  charge  for  the  storage 
of  lumber  allowed  to  remain  too  long  piled  up  in  the  mill-yard.  We 
do  not  think  that,  on  these  facts  alone,  the  plaintiffs  had  the  right  to 
charge  the  defendant  with  what  they  paid  for  the  use  of  other 
grounds,  and  for  moving  their  lumber  as  manufactured  to  them.  To 
warrant  a  recovery  for  such  charges,  the  notice  for  the  removal  of 
his  lumber  should  have  been  limited  to  a  definite  time,  accompanied 
with  the  statement  that,  if  his  lumber  was  not  removed  by  the  time 
named,  they  should  charge  the  defendant  with  what  it  cost  them  to 
secure  such  accommodations  for  their  lumber  as  manufactured  as 
the  removal  of  his  lumber  would  afford  them ;  or,  if  no  definite  time 
for  its  removal  was  named  in  the  notice  accompanied  with  a  state- 
ment of  their  intention  to  charge,  it  should  be  found  that  the  plain- 
tiffs waited  a  reasonable  time  for  the  defendant  to  make  the  re- 
moval before  they  procured  other  accommodations  at  his  expense. 
On  the  facts  reported  a  majority  of  the  court  do  not  think  that  the 
plaintiffs  can  recover  for  this  item.     *     *     *     * 


BOSTON  ICE  CO.  v.  POTTER. 

123  Mass.  28. — 1877. 

Contract  on  an  account  annexed,  for  ice  sold  and  delivered  be- 
tween April  I,  1874,  and  April  i,  1875.  Answer,  a  general  denial. 
Judgment  for  defendant.    Plaintiff  alleged  exceptions. 

Endicott,  J. — To  entitle  the  plaintiff  to  recover,  it  must  show 
some  contract  with  the  defendant.  There  was  no  express  contract, 
and  upon  the  facts  stated  no  contract  is  to  be  implied.  The  defend- 
ant had  taken  ice  from  the  plaintiff  in  1873,  but,  on  account  of  some 
dissatisfaction  wnth  the  manner  of  supply,  he  terminated  his  con- 
tract, and  made  a  contract  for  his  supply  with  the  Citizens'  Ice  Com- 
pany. The  plaintiff  afterward  delivered  ice  to  the  defendant  for 
one  year  without  notifying  the  defendant,  as  the  presiding  judge 
has  found,  that  it  had  bought  out  the  business  of  the  Citizens'  Ice 
Company,  until  after  the  delivery  and  consumption  of  the  ice. 

The  presiding  judge  has  decided  that  the  defendant  had  a  right 
to  assume  that  the  ice  in  question  was  delivered  by  the  Citizens' 
Ice  Company,  and  has  thereby  necessarily  found  that  the  defend- 
ant's contract  with  that  company  covered  the  time  of  the  delivery 
of  the  ice. 

There  was  no  privity  of  contract  established  between  the  plaintiff 


IN    GENERAL.  2^ 

and  defendant,  and  without  such  privity  the  possession  and  use  of 
the  property  will  not  support  an  implied  assumpsit.  Hills  v.  Snell, 
104  Mass.  173,  177.  And  no  presumption  of  assent  can  he  implied 
from  the  reception  and  use  of  the  ice,  hccause  the  defendant  had  no 
knowledge  that  it  was  furnished  hy  the  plaintiff,  hut  supposed  that 
he  received  it  under  the  contract  made  with  the  Citizens'  Ice  Com- 
pany.   Of  this  change  he  was  entitled  to  he  informed. 

A  party  has  a  right  to  select  and  determine  with  whom  he  will 
contract,  and  cannot  have  another  person  thrust  upon  him  with- 
out his  consent.  It  may  be  of  importance  to  him  who  performs 
the  contract,  as  when  he  contracts  with  another  to  paint  a  pic- 
ture, or  write  a  book,  or  furnish  articles  of  a  particular  kind,  or 
when  he  relies  upon  the  character  or  qualities  of  an  individual, 
or  has,  as  in  this  case,  reasons  why  he  does  not  wish  to  deal 
with  a  particular  party.  In  all  these  cases,  as  he  may  contract 
with  whom  he  pleases,  the  sufficiency  of  his  reasons  for  so  doing 
cannot  be  inquired  into.  If  the  defendant,  before  receiving  the 
ice,  or  during  its  delivery,  had  received  notice  of  the  change, 
and  that  the  Citizens'  Ice  Company  could  no  longer  perform  its 
contract  with  him,  it  would  then  have  been  his  undoubted  right 
to  have  rescinded  the  contract  and  to  decline  to  have  it  executed 
by  the  plaintifif.  But  this  he  was  unable  to  do,  because  the  plaintiff 
failed  to  inform  him  of  that  which  he  had  a  right  to  know.  Orcutt 
V.  Nelson,  i  Gray,  536,  542 ;  Winchester  v.  Howard,  97  Mass.  303 ; 
Hardman  v.  Booth,  i  H.  &  C.  803 ;  Humble  v.  Hunter,  12  0.  B.  310 ; 
Robson  v.  Drummond,  2  B.  &  Ad.  303.  If  he  had  received  notice 
and  continued  to  take  the  ice  as  delivered,  a  contract  would  be  im- 
plied. Mudge  V.  Oliver,  i  Allen  74;  Orcutt  v.  Nelson,  ubi  supra; 
Mitchell  V.  Lapage,  Holt  N.  P.  253. 

There  are  two  English  cases  very  similar  to  the  case  at  bar. 
In  Schmaling  v.  Thomlinson,  6  Taunt.  147,  a  firm  was  employed 
by  the  defendants  to  transport  goods  to  a  foreign  market,  and  trans- 
ferred the  entire  employment  to  the  plaintiff,  who  performed  it 
without  the  privity  of  the  defendants,  and  it  was  held  that  he  could 
not  recover  compensation  for  his  services  from  the  defendants. 

The  case  of  Boulton  v.  Jones,  2  H.  &  N.  564,  was  cited  by  both 
parties  at  the  argument.  There  the  defendant,  who  had  been  in  the 
habit  of  dealing  wath  one  Brocklehurst,  sent  a  written  order  to  him 
for  goods.  The  plaintiff,  who  had  on  the  same  day  bought  out  the 
business  of  Brocklehurst,  executed  the  order  without  giving  the  de- 
fendant notice  that  the  goods  were  supplied  by  him  and  not  by 
Brocklehurst.  And  it  was  held  that  the  plaintiff"  could  not  maintain 
an  action  for  the  price  of  the  goods  against  the  defendant.  It  is  said 
in  that  case  that  the  defendant  had  a  right  of  set-off  against  Brockle- 
hurst, with  whom  he  had  a  running  account,  and  that  is  alluded  to 
in  the  opinion  of  Baron  Bramwell,  though  the  other  judges  do  not 
mention  it. 

The  fact  that  a  defendant  in  a  particular  case  has  a  claim  in  set- 
off against  the  original  contracting  party  shows  clearly  the  injustice 


28  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

of  forcing  another  person  upon  him  to  execute  the  contract  without 
his  consent,  against  whom  his  set-off  would  not  be  available.  But 
the  actual  existence  of  the  claim  in  set-off  cannot  be  a  test  to  deter- 
mine that  there  is  no  implied  assumpsit  or  privity  between  the  par- 
ties. Nor  can  the  non-existence  of  a  set-off  raise  an  implied  assump- 
sit. If  there  is  such  a  set-off,  it  is  sufficient  to  state  that  as  a  reason 
why  the  defendant  should  prevail ;  but  it  by  no  means  follows  that 
because  it  does  not  exist  the  plaintiff  can  maintain  his  action.  The 
right  to  maintain  an  action  can  never  depend  upon  whether  the  de- 
fendant has  or  has  not  a  defense  to  it. 

The  implied  assumpsit  arises  upon  the  dealings  between  the 
parties  to  the  action,  and  cannot  arise  upon  the  dealings  between 
the  defendant  and  the  original  contractor,  to  which  the  plaintiff 
was  not  a  party.  At  the  same  time,  the  fact  that  the  right  of  set-off 
against  the  original  contractor  could  not,  under  any  circumstances, 
be  availed  of  in  an  action  brought  upon  the  contract  by  the  person 
to  whom  it  was  transferred  and  who  executed  it,  shows  that  there 
is  no  privity  between  the  parties  in  regard  to  the  subject-matter  of 
this  action. 

It  is,  therefore,  immaterial  that  the  defendant  had  no  claim  in 
set-off  against  the  Citizens'  Ice  Company. 

We  are  not  called  upon  to  determine  what  other  remedy  the 
plaintiff  has,  or  what  would  be  the  rights  of  the  parties  if  the 
ice  were  now  in  existence. 

Exceptions  overruled.^ 


ii.     Performance  of  Obligation  Imposed  by  Law  Upon  Defendant^ 
FoLGER,  J.,  IN  PATTERSON  v.  PATTERSON. 

59  N.  Y.  574,  582,  585.-i875. 

I  HAVE  no  doubt  but  that  the  reasonable  and  necessary  expenses  of 
the  interment  of  the  dead  body  of  one  deceased  are  a  charge  against 
his  estate,^  though  not  strictly  a  debt  due  from  him.  The  ground  of 
this  is  the  general  right  of  everyone  to  have  decent  burial  after  death, 
which  implies  the  right  to  have  his  body  carried,  decently  covered, 
from  the  place  where  it  lies  to  a  cemetery  or  other  proper  inclosure, 
and  there  put  under  ground.  Regina  v.  Stewart,  12  Ad.  &  Ell.  773, 
citing  Gilbert  v.  Buzzard,  2  Hagg.  Consist.  R.  333 ;  see,  also,  Chap- 

'  Tn  Barnes  v.  Shoemaker,  112  Ind.  512  (1887),  an  order  for  books  was  given 
by  S.  to  P..  but  was  filled  by  P..  at  P.'s  request;  after  notice  of  this  fact,  S. 
appropriated  the  books  and  was  hold  liable  to  B.  for  the  price. 

For  cases  on  the  ]ial)ility  of  the  husband  for  necessaries  supplied  to  the 
wife,  and  the  liability  of  the  parent  for  necessaries  supplied  to  the  child,  see 
these  topics  in  Smith's  Cases  on  Persons  and  Woodruff's  Cases  on  Domestic 
Relations. 

'Accord,  Fogg  v.  Holbrook,  cx'r,  88  Me.  169  (1895). 


PERFORMANCE    OF   DEFENDANT'S    OBLIGATION.  29 

pie  V.  Coope,  13  M.  &  W.  252.  In  the  last  case,  in  which  an  infant, 
a  widow,  was  held  lial^le  on  her  contract  for  the  funeral  expenses 
of  the  hurial  of  her  deceased  hushand,  it  was  said,  that  "there  are 
many  authorities  which  lay  it  down  that  decent  Christian  burial 
is  a  part  of  a  man's  own  rights ;  and  we  think  it  no  .c^reat  extension 
of  the  rule  to  say,  that  it  may  be  classed  as  a  personal  advantage 
and  reasonably  necessary  to  him."  This  right  existing,  the  law 
casts  upon  some  one  the  duty  of  seeing  that  it  is  accorded.  12  Ad. 
&  Ell.,  supra.  So  it  would  seem,  at  common  law,  that  if  a  poor 
person  of  no  estate  dies,  it  is  the  duty  of  him  under  whose  roof  his 
body  lies,  to  carry  it,  decently  covered,  to  the  place  of  burial.  12  Ad. 
&  Ell.,  supra.  The  husband  surviving  is  bound  to  bury  the  corpse  of 
his  wife ;  and  in  his  absence,  another,  a  relative,  with  whom  she  had 
lived  up  to  her  death,  having  directed  the  funeral  and  paid  the  ex- 
penses, may  recover  it  of  the  husband,  Jenkins  v.  Tucker,  I  H.  Bl. 
90;  13  M.  &  W.,  supra;  and  see  Ambrose  v,  Kenison,  10  C.  B.  yy6.^ 
And  where  the  owner  of  some  estate  dies,  the  duty  of  the  burial  is 
upon  the  executor.  Toller  Law  of  Exrs.  245,  bk.  3,  cap.  i,  sec.  i. 
And  our  Revised  Statutes  (2  R.  S.  71,  sec.  16)  recognize  this  duty, 
in  that  the  executor  is  prohibited  from  any  interference  with  the 
estate  until  after  probate,  except  that  he  may  discharge  the  funeral 
expenses.  From  this  duty  springs  a  legal  obligation,  and  from  the 
obligation  the  law  implies  a  promise  to  him  who,  in  the  absence  or 
neglect  of  the  executor,  not  officiously,-  but  in  the  necessity  of  the 
case,  directs  a  burial  and  incurs  and  pays  such  expense  thereof  as 
is  reasonable.  Tugwell  v.  Heyman,  3  Camp.  298.  It  is  analogous 
to  the  duty  and  obligation  of  a  father  to  furnish  necessaries  to  a 
child,  and  of  a  husband  to  a  wife,  from  which  the  law  implies  a 
promise  to  pay  him  who  does  what  the  father  or  the  husband,  in  that 
respect,  omits.  And  so,  in  Rogers  v.  Price,  3  Younge  &  Jervis  28, 
it  was  held  that  an  executor,  wath  assets,  is  liable  to  a  brother  of  the 
deceased  for  the  proper  expenses  of  a  funeral  ordered  and  paid  for 
by  the  latter,  in  the  absence  of  the  former.  In  Hapgood  v.  Hough- 
ton's Executor,  10  Pick.  154,  it  was  held  that  the  law  raises  a 
promise  on  the  part  of  the  executor  or  administrator  to  pay  for  the 
funeral  expenses  as  far  as  he  has  assets,  and  if  he  have  no  assets 
he  should  plead  that  fact  in  bar,  and  that  if  he  has,  the  judgment 
must  be  against  them  in  his  hands.  And  in  Adams  v.  Butts,  16 
Pick.  343,  it  w^as  held  that  an  account  for  the  funeral  expenses  of  a 
deceased  person  might  be  set  off  by  the  defendant  in  an  action 
against  him  by  the  administrator  for  the  work  and  labor  of  the  de- 
ceased in  his  lifetime.  Price  v.  Wilson,  3  N.  &  ]\I.  512,  is  sometimes 
cited  as  an  authority  that  "there  is  no  case  which  goes  the  length  of 
deciding  that  if  the  funeral  be  ordered  by  another  person,  to  whom 

^Accord,  Cunningham  v.  Reardon,  98  Mass.  538  (1868)  ;  Gleason  v.  Warner, 
78  Minn.  405   (1899). 

^  No  recovery  where  the  expenses  are  paid  officiously,  Quin  v.  Hill,  4  Dem. 
69  (N.  Y.  Surrogate's  Ct.  I't" 


30  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

credit  is  given,  the  executor  is  liable."  Patterson,  J.,  did  there  use 
that  language.  But  in  Green  v.  Salmon,  8  Ad.  &  Ell.  348,  he  limits 
the  expression,  saying:  "The  judgment  there  probably  means  that 
the  executor,  where  credit  has  been  given  to  another  person,  is 
not  liable  to  the  undertaker ;  if  it  lays  down  more,  the  law  stated  is 
extra-judicial."  See  also  Rappelyea  v.  Russel,  i  Daly  214,  where 
the  subject  of  the  liability  of  a  personal  representative  is  well  con- 
sidered by  the  learned  chief  justice  of  the  New  York  Common 
Pleas.     *     *     *     * 

The  decent  burial  of  the  dead  is  a  matter  in  which  the  public 
have  concern.  It  is  against  the  public  health  if  it  do  not  take  place 
at  all  (Rex  v.  Stewart,  supra),  and  against  a  proper  public  senti- 
ment, that  it  should  not  take  place  with  decency.  Kanasan's  Case, 
I  Greenl.  226 ;  see  Jones  v.  Ashburnham,  4  East  460 ;  Regina  v. 
Fox,  2  Q.  B.  246. 


CONSTANTINIDES   v.   WALSH,  Executor. 

146  Mass.  281.— 1888. 

Contract,  upon  an  account  annexed,  for  the  expenses  of  the  fu- 
neral of  the  defendant's  testatrix.  Writ  dated  June  18,  1886.  Trial 
in  the  Superior  Court,  before  Blodgett,  J.,  who  allowed  a  bill  of 
exceptions  in  substance  as  follows :  Louisa  Constantinides,  the 
plaintiff's  wife  and  the  defendant's  testatrix,  died  October  23,  1884, 
possessed  of  separate  estate,  all  of  which  she  gave  to  her  son,  the 
step-son  of  the  plaintiff,  by  her  will  admitted  to  probate  on  Novem- 
ber 17,  1884.  The  plaintiff  had  no  knowledge  of  the  will  until  three 
weeks  after  her  death,  before  which  time  he  had  contracted,  and  on 
October  2y,  1884,  had  paid  a  bill  for  her  necessary  funeral  expenses, 
which  it  was  agreed  was  reasonable.  It  was  not  contended  that  the 
defendant  had,  prior  to  or  after  his  appointment,  made  any  promise 
of  payment.  The  defendant  asked  the  judge  to  rule  that  the  plain- 
tiff could  not  recover,  and  the  judge  so  ruled,  and  ordered  a  verdict 
for  the  defendant ;  and  the  plaintiff  alleged  exceptions. 

Holmes,  J. — The  funeral  expenses  of  the  testatrix  were  a  pre- 
ferred charge  upon  her  estate.  Pub.  Sts.,  c.  135,  §  3  ;  c.  137,  §  i.  St. 
1882,  c.  141.  Under  these  statutes,  and  those  establishing  the  inde- 
pendent position  of  married  women  with  regard  to  their  property, 
we  think  that,  as  between  the  estate  of  a  married  woman  leaving 
property  and  her  husband,  the  liability  of  the  estate  must  be  re- 
garded as  primary,  and  that  it  would  be  unreasonable  to  charge  the 
husband  for  the  funeral  expenses,  in  all  events,  as  necessaries,  irre- 
spective of  any  fault  on  his  part.  If,  then,  it  was  still,  as  formerly, 
the  plaintiff's  legal  duty  to  see  that  his  wife  was  buried,  but  her  es- 
tate was  primarily  liable,  he  is  entitled  to  recover  his  reasonable  ex- 
pcnfliturcs  as  in  other  cases  when  a  person  has  paid  in  pursuance 
of  a  legal  duty  what,  as  between  himself  and  another,  that  other  was 


PERFORMANCE    OF    DEFENDANTS    OBLIGATION.  3I 

bound  to  pay.  There  is  no  technical  difficuhy  in  a  husband's  impos- 
ing a  Habihty  upon  his  wife's  executor  after  her  death.  If  it  was 
not  the  plaintiff's  legal  duty  to  do  what  he  did,  nevertheless  we  are 
of  opinion  that  he  stood  on  no  worse  ground  than  a  stranger  would 
have  done.  A  stranger  could  have  recovered  against  the  estate  of 
a  man,  if  he  was  justified  in  intermeddling.  Sweeney  v.  Muldoon, 
139  Mass.  304,  306.  And  formerly,  in  the  case  of  a  married  woman, 
he  could  have  recovered  against  her  husband.  Lakin  v.  Ames,  lo 
Cush.  198,  221  ;  Weld  v.  Walker,  130  Mass.  422,  423 ;  Bradshaw  v. 
Beard,  12  C.  B.  (N.  S.)  344.  Undoubtedly  he  could  now  recover 
against  her  estate.  If  so,  the  husband  can.  In  such  a  matter  it  is 
not  to  be  presumed  that  the  husband  waives  his  legal  rights,  and 
makes  a  gift  to  the  estate  of  his  wife,  in  the  absence  of  any  ex- 
pression or  other  evidence  to  that  efifect. 

Exceptions  sustained.^ 


MANHATTAN  FIRE  ALARM  CO.  v.  WEBER  et  al. 

22  Misc.  (N.  Y.)  729. — 1898. 

(Suprc)iic  Cf.,  Appellate  Term.) 

Appeal  by  the  plaintiff  from  a  judgment  of  the  District  Court 
in  the  city  of  New  York  for  the  first  judicial  district,  rendered 
in  favor  of  the  defendants  by  the  justice  thereof,  without  a  jury. 

GiEGERiCH,  J. — On  the  ist  day  of  September,  1896,  the  defend- 
ants became  the  lessees  of  a  certain  music  hall  or  theater  in  the 
city  of  New  York,  in  which  plaintiff  had  theretofore  installed,  for 
a  former  lessee,  five  fire-alarm  boxes.  These  remained  upon  the 
premises  until  the  i6th  day  of  September,  1897,  when  they  were 
removed  by  the  plaintiff,  who  seeks  to  recover  for  having  main- 
tained such  service  during  the  period  mentioned.  The  defendants 
contest  the  claim  on  the  ground  that  neither  of  them  requested  the 
service  and  merely  suffered  the  alarm  signals  to  remain  upon  the 
premises,  pending  plaintiff's  attempt  to  secure  from  them  a  contract 
for  their  maintenance  in  the  future.  Plaintiff,  while  conceding 
that  the  defendants  did  not  expressly  assent  to,  or  promise  to  pay 
for,  a  continuation  of  the  service,  nevertheless  bases  its  right  to  re- 
cover upon  the  theory  that  the  facts  and  circumstances  of  the  case 
bring  it  within  the  rule  that,  where  one  voluntarily  accepts  and 
avails  himself  of  valuable  services,  rendered  for  his  benefit,  when 
he  has  the  option  to  accept  or  reject  them,  with  knowledge  that  the 
party  rendering  the  same  expects  payment  therefor,  a  promise  to 
pay  may  be  inferred  even  without  distinct  proof  that  they  were 
rendered  at  his  request.    Lawson  on  Contracts,  §  34;  Benjamin  on 

*  Contra,  Staples's  Appeal,  52  Conn.  425  (1884);  contra  if  the  husband  is 
able,  Smyley  v.  Reese,  53  Ala.  89  (1875),  In  re  Weringer,  100  Cal.  345  (1893). 


32  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

Principles  of  Contract,  §  i8;  i  Parsons  on  Contracts  (8th  ed.), 
486;  Day  V.  Caton,  119  Mass.  513;  20  Am.  Rep.  347;  Davidson 
V.  Westchester  Gas  Light  Co.,  99  N.  Y.  559,  566.  The  difficulty 
with  this  position,  however,  is  that  the  testimony  upon  which  it  is 
based  was  contradicted.    *    *    *    * 

There  was  sufficient  evidence  in  the  case  to  support  a  finding  either 
way.  But  it  was  the  function  of  the  trial  justice  to  determine  on 
which  side  the  weight  of  the  evidence  inclined,  or  that  the  evidence 
did  not  preponderate  in  favor  of  the  plaintiff,  and,  having  found 
for  the  defendants  upon  a  conflict  of  evidence,  we  should  not  dis- 
turb his  conclusions.  Weiss  v.  Strauss,  14  N.  Y.  Supp.  776 ;  Lynes 
V.  Hickey,  4  Misc.  Rep.  522, 

The  plaintiff  could  at  any  time  have  discontinued  the  service  by 
disconnecting  the  wires  and  so  rendering  the  apparatus  worthless ; 
but  it  did  not  see  fit  to  do  so,  and  merely  because  of  such  omission 
it  cannot  impose  a  liability  on  the  defendants,  in  the  absence  of 
their  request  to  maintain  it. 

Plaintiff  further  contends  that  the  defendants  were  under  a 
legal  duty  to  maintain,  upon  their  premises,  an  apparatus  such  as 
it  had  installed  there,  and  we  infer  therefrom  that  the  rule  in- 
voked is,  that  where  an  obligation  is  imposed  by  law  upon  one  to 
do  an  act,  because  of  the  interest  which  the  public  has  in  its  per- 
formance, and  he  fails  to  perform  it,  another  who  performs  it,  with 
the  expectation  of  receiving  compensation,  should  be  allowed  to 
recover  against  the  former.  Keener  on  Quasi-Contracts  341.  The 
burden,  however,  is  on  the  person  making  such  a  claim  to  establish 
the  necessity  for  his  intervention,  as  well  as  that  the  act  done  should 
have  been  performed  by  the  person  from  whom  recovery  is  sought. 
Id.  347. 

In  Keener  on  Ouasi-Contracts,  349,  the  learned  author  says : 
"To  charge  a  defendant  for  services  rendered  in  the  discharge  of  an 
obligation  which  he,  the  defendant,  should  have  performed,  the 
plaintiff  must  establish  a  necessity  for  his,  the  plaintiff's  action. 
In  a  case  where  the  reason  for  the  appeal  to  the  plaintiff  is  the  fact 
that  the  defendant  had  failed  in  his  obligation,  then  no  notice  is 
necessary.  If,  however,  the  defendant  has  not  refused  to  discharge 
his  obligation,  and  his  failure  to  act  has  been  due  to  his  want  of 
opportunity,  he  must,  if  he  is  in  a  position  to  act,  be  given  the  oppor- 
tunity before  any  one  will  be  justified  in  acting  in  his  stead." 

The  Consolidation  Act,  among  other  things,  provided  that  "the 
owners  or  proprietors  of  all  *  *  *  theaters  and  music  halls  *  *  * 
shall  provide  such  means  of  communicating  alarms  of  fire,  accident 
or  danger  to  the  police  and  fire  departments,  respectively,  as  the 
board  of  fire  commissioners  or  the  board  of  police  commissioners 
may  direct."  Laws  of  1882,  chap  410,  §  454,  as  amended  by  Laws 
of  1892,  chap.  703,  §  I. 

There  was  no  direct  proof  that  the  public  authorities  ever  adopted 
plaintiff's  system,  but  it  is  fairly  deduciblc,  from  the  letter  of  Feb- 


PERFORMANCE    OF    DEFENDANT  S    OBLIGATION.  33 

ruary  19,  1897,  that  it  had  hecn  installed  in  some  of  the  theaters  in 
the  city  of  New  York  by  their  consent. 

There  is  no  pretense  whatever  that  the  plaintiff's  system  was 
the  only  one  which  had  received  official  sanction  during  the  period 
plaintiff  claims  to.  have  maintained  the  service,  and,  therefore,  the 
defendants  were  not  confined  in  their  choice  to  the  service  fur- 
nished by  the  plaintiff.  Moreover,  the  record  fails  to  disclose 
whether  or  not  any  other  fire  alarm  system  was  provided  by  the 
defendants  durino-  the  period  in  question.  But  aside  from  this 
there  was  no  necessity  for  the  plaintiff  to  maintain  its  service  upon 
the  defendants'  premises,  as  the  public  authorities  had  ample  power 
to  compel  the  defendants  to  discharge  the  duty  which  the  law  im- 
posed (Laws  of  1882,  chap.  410,  §  465,  as  amended  by  laws  of 
1892,  chap.  703,  §  3),  and  hence,  even  though  the  evidence  might 
have  justified  the  inference  that  the  plaintiff  expected  to  be  re- 
munerated for  maintaining  the  service,  it  cannot  recover  upon  the 
ground  that  it,  in  the  public's  interest,  discharged  an  obligation  im- 
posed by  law  upon  the  defendants.  Keener  on  Ouasi-Contracts, 
344,  347 ;  Force  v.  Haines.  2  Harr.  385. 

For  these  reasons,  to  my  mind,  the  judgment  should  be  affirmed, 
with  costs. 

Beekman,  p.  J.,  and  Gildersleeve,  J.,  concur. 

Judgment  affirmed,  with  costs. 


MUIR  V.  CRAIG. 

3  Blackf.  (Ind.)  293.— 1833. 

Bill  in  chancery. 

Blackford,  J. — *  *  *  *  The  question  which  is  presented  by 
this  case  is  whether  the  purchaser  at  a  sheriff's  sale  of  land,  to  which 
the  execution  debtor  had  no  title,  but  wliich  belonged  at  the  time 
to  the  United  States,  can  recover  from  the  debtor,  in  equity,  the 
amount  of  the  purchase  money  paid  to  the  sheriff,  though  no  fraud 
in  relation  to  the  sale  be  imputed  to  the  debtor?  We  find  this 
question,  so  far  as  it  could  arise  in  a  case  of  the  sale  of  a  negro,  de- 
cided in  the  affirmative  by  the  Court  of  Appeals  in  Kentucky  in 
McGhee  v.  Ellis,  4  Litt.  245.  Our  opinion  is  in  accordance  with 
that  decision,  the  principle  of  which  must,  we  conceive,  be  ap- 
plicable to  a  case  of  the  sale  of  land.  Craig's  debt  to  Jennings  [the 
execution  creditor],  as  to  $295,  has  been  paid  by  Muir.  The  con- 
sideration for  that  payment,  viz :  the  land  sold  by  the  sheriff  to 
Muir  as  Craig's  property,  has  entirely  failed.  Muir  must  be  en- 
titled, under  the  circumstances  of  the  case,  to  recover,  in  equity, 
from  Craig,  who  has  received  the  benefit,  the  purchase  money  paid 
Woodruff's  Cases — 3 


34  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

to  the  sheriff  for  the  land,  with  interest.    The  decree  of  the  Circuit 
Court  in  favor  of  the  defendant  is  erroneous  and  must  be  reversed.^ 


iii.    Performance  of  Defendant's  Contractual  Obligation. 

MOODY  V.  MOODY. 

14  Me.  307.— 1837- 

Assumpsit  for  the  board  of  one  WilHam  Jones,  with  the  usual 
money  counts  in  the  declaration.  To  maintain  his  action  the  plain- 
tiff offered  to  prove,  that  on  March  29,  1830,  the  defendant  had 
given  a  bond  to  said  Jones,  stipulating  therein  to  maintain  him  dur- 
ing life  in  a  comfortable  manner;  that  in  the  summer  of  1833  Jones 

^In  M'Ghee  v.  Ellis,  4  Litt.  (Ky.)  245  (1823),  the  court  says  (p.  246): 
"What  is  the  situation  of  the  debtor?  By  his  own  act  in  creating  the  debt 
and  then  refusing  to  discharge  it  he  is  guilty  of  a  wrong  upon  the  creditor, 
which  subjects  him  to  legal  process  and  the  sentence  of  the  constituted  au- 
thorities of  his  country,  that  he  shall  pay  the  debt.  The  sheriff,  with  the  ju- 
dicial process  in  his  hand,  seeks  his  estate,  and  perhaps  acting  honestly  and 
innocently,  takes,  by  mistake,  the  estate  of  another  and  exposes  it  for  sale.  By 
the  act  of  sale  and  the  return  of  the  officer,  his  debt  is  discharged,  his 
wrong  against  his  creditor  is  purged,  and  the  creditor  is  estopped  by  the  re- 
turn from  again  resorting  to  the  judgment.  To  the  judgment,  and  also  the 
proceeding  under  the  execution,  both  he  and  the  creditor  are  parties,  and  while 
that  remains  in  force,  each  is  concluded  by  the  return,  as  was  decided  by  this 
court  in  the  case  of  Smith  v.  Hornbeck,  Reed  and  others.  (The  case  of  Smith 
V.  Hornbeck  and  Reed  was  decided  at  the  fall  term,  1821,  and  may  be  consid- 
ered as  a  leading  case ;  but  I  was  prohibited  from  publishing  it  because  it  con- 
tained no  principle  which  was  not  contained  in  some  case  in  print.  It  was  re- 
ferred to  in  the  case  of  Small  and  Carr  v.  Hodgen,  decided  at  the  next  term, 
I  Litt.  Rep.  17,  which  last  case  decides  the  same  principle.)  From  this  process 
and  this  mistaken  act  of  the  sheriff  the  debtor  receives  a  benefit  direct,  his  debt 
is  discharged  and  the  money  of  the  purchaser  is  paid,  laid  out  and  expended 
for  his  benefit.  It  may,  indeed,  be  said  that  the  proceedings  against  him  are  in 
invitum,  and  that,  from  that  circumstance,  his  request  that  the  money  should 
be  so  laid  out  cannot  be  presumed,  and  therefore  that  an  action  for  money 
paid,  laid  out  and  expended  could  not  be  sustained.  To  this  it  may  be  re- 
sponded that  if  the  promise  cannot  be  presumed  so  that  assumpsit  may  be 
maintained  he  is  under  a  strong  moral  claim,  which  may  be  enforced  in  equity."' 
Contra,  Salmond  v.  Price,  13  Oh.  368  (1844), — no  recovery  against  any  one 
by  the  purchaser,  the  doctrine  of  caveat  emptor  being  strictly  applied.  This  is 
the  view  of  TVeeman  on  Executions,  §  352,  and  of  the  same  author  in  a  note 
in  14  Amer.  Dec.  131. 

One  who  supplies  ncces.saries  to  a  pauper  can  recover  for  the  same  from  a 
town,  when  it  is  the  legal  duly  of  the  town  to  support  the  pauper  and  its  proper 
officers  have  refused  to  do  so.  Trustees  of  Cincinnati  v.  Ogden,  5  Oh.  23 
(1831). — A  county  recorder  received  deeds  for  filing  and  recording  and  was 
paifl  the  fees.  He  filed  them  but  did  not  record  them,  and  they  were  recorded 
by  his  successor  in  office.  "Having  received  all  the  fees  and  performed  only 
a  part  of  the  services,  he  nnist  pay  to  his  successor  in  office  that  part  of  the 
fee  in  each  case  which  is  payable  for  the  services  performed  by  plaintiff  [the 
successor]."   Davis  v.  Thompson,  i  Nev.  17  (1865). 


PERFORMANCE   OF   DEFENDANTS   OBLIGATION.  35 

applied  to  the  plaintiff  to  board  him,  that  he  did  board  him  with  the 
knowledge  of  the  defendant ;  and  that  the  defendant  had  neglected 
and  refused  to  furnish  Jones  with  such  comfortable  maintenance. 
And  the  plaintiff  contended,  that  he  was  entitled  to  recover  on  such 
proof;  but  the  judge  was  of  opinion  that  on  this  evidence  there  was 
no  privity  of  contract,  and  directed  a  non-suit ;  to  which  the  plaintiff 
excepted. 

SiiEPLEY,  J. — To  maintain  this  action  there  must  be  a  contract 
between  the  parties  either  express  or  implied.  The  evidence  re- 
ported does  not  prove  any  express  contract ;  and  the  only  evidence 
from  which  one  can  be  implied  in  law  is,  that  the  defendant  was 
bound  for  the  support  of  one  Jones ;  that  he  neglected  and  refused 
to  afford  him  such  support ;  and  that  Jones  applied  to  the  plaintiff 
to  board  him,  and  the  plaintiff  did  board  him  with  the  knowledge  of 
the  defendant.  The  defendant's  neglect  to  fulfill  his  contract  with 
Jones  did  not  authorize  another  person  to  assume  the  performance 
of  it,  and  substitute  himself  as  the  creditor  of  the  defendant.  The 
law  never  implies  a  contract  to  substitute  one  creditor  for  another. 
The  defendant  has  a  right  to  say,  "non  in  haec  foedera  veni." 

It  may  have  been  supposed,  that  there  existed  some  analogy  be- 
tween this  case,  and  that  of  a  wife  forced  by  the  ill  usage  of  the 
husband  to  leave  his  dwelling,  and  carrying  with  her  a  right  to 
charge  him  with  her  support,  by  obtaining  it  from  another  person. 
There  is  no  such  analogy  of  legal  rights.  The  case  of  the  wife  de- 
pends upon  the  peculiar  relations  of  husband  and  wife.  She  is  en- 
titled by  law  to  a  support,  and  if  unable  to  obtain  it  from  the  hus- 
band, she  can  maintain  no  suit  against  him  to  recover  damages,  or 
to  obtain  the  means  of  compensating  another  for  the  necessaries 
supplied.  Considering  that  for  many  purposes  husband  and  wife 
are  to  be  regarded  as  one  person,  the  law,  under  such  circumstances, 
implies  that  her  contracts  are  the  contracts  of  the  husband,  for  the 
purpose  of  affording  her,  in  the  only  way  in  which  it  can  be  done, 
the  necessaries  of  life  at  the  charge  of  the  person  by  law  obliged  to 
afford  them.  There  is  no  such  relation,  nor  any  such  necessity  in 
this  case ;  and  the  law  wall  imply  no  such  contract.  The  person  en- 
titled to  support  may,  in  his  own  name,  enforce  his  rights,  and  ob- 
tain the  means  of  fulfilling  his  own  contracts  with  others.  The  ex- 
ceptions are  overruled  and  the  nonsuit  is  confirmed.^ 

*  Accord,  Savage  v.  McCorkle,  17  Ore.  42  (i 


36  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

FORSYTH  V,  GANSON,  and  others,  Administrators. 
S  Wend.  558.— 1830. 

Assumpsit.  The  action  was  brought  for  the  support  and  mainte- 
nance of  Esther  Ganson,  the  mother  of  the  plaintiff,  and  the  step- 
mother of  the  intestate.  It  appeared  when  the  father  of  the  intes- 
tate married  Esther  Ganson,  she  was  possessed  of  property  to  some 
considerable  amount ;  in  1804,  the  father  of  the  intestate  bought  a 
place  and  went  into  the  business  of  tavern  keeping;  his  sons,  John 
the  intestate  and  Janies  the  administrator,  lived  with  him  after  they 
arrived  of  age  and  carried  on  business  together.  In  181 1,  a  division 
was  made  of  all  the  property  between  John  and  James,  John  receiv- 
ing $1,000  more  than  his  brother,  and  agreeing  to  support  his  father 
and  stepmother,  and  accordingly  did  so  until  the  death  of  his  father, 
which  happened  about  two  years  after  the  division  of  the  property ; 
after  the  death  of  his  father,  John  refused  to  continue  to  support 
his  stepmother,  when  her  son,  the  plaintiff  in  this  cause,  took  her  to 
his  house,  and  now  brought  his  action  against  the  administrators  of 
John,  to  recover  for  her  support  and  maintenance. 

Sutherland,  J. — If  the  plaintiff"  can  recover  at  all,  it  must  be  on 
the  ground  that  the  intestate,  John  Ganson,  was  legally  bound  to 
support  his  stepmother,  Esther  Ganson,  and  that  having  refused  to 
provide  for  her,  the  law  implies  a  promise  on  his  part  to  pay  the 
plaintiff  whatever  he  has  necessarily  expended  in  her  support. 
There  is  no  evidence,  either  of  a  request  on  the  part  of  the  intestate 
to  the  plaintiff  to  provide  for  Esther  Ganson,  or  of  an  express  prom- 
ise to  pay  him  for  supporting  her.  The  jury,  by  their  verdict,  have 
found  that  the  intestate  either  had  funds  in  his  hands  which  he  was 
bound  to  apply  to  the  support  of  his  stepmother,  or  that  upon  a 
good  consideration  he  had  promised  to  provide  for  her ;  and  I  think 
the  verdict  is  warranted  by  the  evidence  in  the  case.     *     *     * 

The  remaining  inquiry  is  (admitting  the  intestate  to  have  been 
legally  bound  to  support  Mrs.  Ganson),  whether  this  action  can  be 
maintained  in  the  name  of  the  present  plaintiff.  I  am  of  opinion 
that  it  can.  It  appears  to  me  to  be  analogous  to  the  case  of  neces- 
saries furnished  to  a  wife  or  infant  child  for  whom  the  husband  or 
father  improperly  neglects  or  refuses  to  provide.  In  such  cases  the 
law  raises  an  implied  promise,  on  the  part  of  the  husband  and 
father,  to  pay  for  such  necessaries.  8  Johns.  R.  72;  13  id.  480;  14 
id.  188 ;  I  Esp.  270 ;  2  id.  739 ;  3  id.  I ;  I  H.  Black.  90 ;  3  Bos.  &  Pul. 
252  ;  5  id.  148 ;  t6  Johns.  Rep.  281.  In  Nurse  v.  Craig,  5  Bos.  &  Pul. 
148,  the  husband  had  expressly  covenanted  with  A.,  as  trustee  for 
his  wife,  to  pay  his  wife  a  weekly  allowance  of  five  shillings ;  the 
wife  lived  with  A.,  and  the  husband  having  neglected  to  pay  the 
stipulated  sum,  A.  brought  an  action  of  indebitatus  assumpsit 
against  him  for  board  and  other  necessaries  furnished  to  his  wife, 
and  the  action  was  sustained,  notwithstanding  the  express  covenant 


PRESERVATIOX  OF  PROPERTY.  37 

on  which  it  was  admitted  the  plaintiff  might  have  sued.  The  in- 
testate in  this  case  being  legally  bound  to  provide  for  Mrs,  Ganson, 
the  services  and  supplies  afforded  to  her  by  the  plaintiff  were  ad- 
vantageous to  the  defendant,  and  may  well  be  considered  as  having 
been  rendered  at  his  request. 

New  trial  denied. 


iv.   Preservation  of  Property. 

CHASE  V.   CORCORAN. 

106  Mass.  286. — 1871. 

Gray,  J. — The  evidence  introduced  at  the  trial  tended  to  prove  the 
following  facts :  The  plaintiff,  while  engaged  with  his  own  boats 
in  the  Mystic  River,  within  the  ebb  and  flow  of  the  tide,  found  the 
defendant's  boat  adrift,  with  holes  in  the  bottom  and  the  keel  nearly 
demolished,  and  in  danger  of  sinking  or  being  crushed  between 
plaintiff's  boats  and  the  piles  of  a  bridge  unless  the  plaintiff  had 
saved  it.  The  plaintiff  secured  the  boat,  attached  a  rope  to  it, 
towed  it  ashore,  fastened  it  to  a  post,  and,  after  putting  up  notices 
in  public  places  in  the  nearest  town,  and  making  other  inquiries, 
and  no  owner  appearing,  took  it  to  his  own  barn,  stowed  it  there  for 
two  winters,  and  during  the  intervening  summer  made  repairs 
(which  were  necessary  to  preserve  the  boat)  and  for  its  better 
preservation  put  it  in  the  water,  fastened  to  a  wharf,  and  directed 
the  wharfinger  to  deliver  it  to  any  one  who  should  prove  ownership 
and  pay  the  plaintiff's  expenses  about  it.  The  defendant  afterwards 
claimed  the  boat ;  the  plaintiff  refused  to  deliver  it  unless  the  de- 
fendant paid  him  the  expenses  of  taking  care  of  it ;  and  the  de- 
fendant then  took  the  boat  by  a  writ  of  replevin,  without  paying  the 
plaintiff  anything.  This  action  is  brought  to  recover  money  paid 
by  the  plaintiff  for  moving  and  repairing  the  boat,  and  compensa- 
tion for  his  own  care  and  trouble  in  keeping  and  repairing  the  same, 
amounting  to  twenty-six  dollars  in  all. 

The  plaintiff  testified,  without  objection,  that  the  boat,  when  found 
by  him,  was  worth  five  dollars.  He  was  then  asked  by  his  counsel, 
what,  when  he  found  it,  he  considered  it  worth.  This  evidence  was 
properly  rejected  as  immaterial. 

The  plaintiff  requested  the  chief  justice  of  the  superior  court  to 
rule  that  the  boat  was  not  lost  goods,  within  the  sense  of  the  Gen. 
Sts.,  c.  79.  But  the  learned  judsfe  refused  so  to  rule,  and  ruled  that 
upon  all  the  evidence  the  plaintiff  could  not  maintain  his  action,  and 
directed  a  verdict  for  the  defendant.  We  are  of  opinion  that  this 
was  erroneous. 

There  is  no  statute  of  the  commonwealth  applicable  to  this  case. 
Chapter  78  of  the  Gen.  Sts.,  concerning  "timber  afloat  or  cast  on 


38  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

shore,"  is  expressly  limited  in  all  its  provisions  to  "logs,  masts, 
spars,  or  other  timber,"  and  does  not  include  boats  or  vessels. 
Chapter  79,  relating  to  "lost  money  or  goods,"  and  "stray  beasts," 
found  in  any  town  or  city,  clearly  applies  to  lost  property  found  on 
land  only,  and  not  to  property  afloat  on  tide-waters,  without  the  lim- 
its of  any  city  or  town,  and  within  the  admiralty  jurisdiction  of  the 
United  States,  3  Dane  Ab.  135.  Chapter  81  is  "of  wrecks  and  ship- 
wrecked goods."  These  words,  in  their  ordinary  legal  meaning,  are 
confined  to  ships  and  goods  cast  on  shore  by  the  sea,  and  cannot  be 
extended  to  a  boat  or  other  property  afloat,  not  appearing  to  have 
been  ever  cast  ashore,  or  thrown  overboard  or  lost  from  a  vessel  in 
distress.  Hale  De  Jure  Maris,  c.  7;  i  Hargr.  Law  Tracts,  37;  3 
Dane  Ab.  133;  Sheppard  v.  Gosnold,  Vaugh.  159,  168;  Palmer  v. 
Rouse,  3  H.  &  N.  505 ;  Baker  v.  Hoag,  3  Selden,  555,  558. 

The  claim  of  the  plaintiff  is  therefore  to  be  regulated  by  the  com- 
mon law.  It  is  not  a  claim  for  salvage  for  saving  the  boat  when 
adrift  and  in  danger  on  tide-water ;  and  does  not  present  the  ques- 
tion whether  the  plaintiff  had  any  lien  upon  the  boat,  or  could  re- 
cover for  salvage  services  in  an  action  at  common  law.  His  claim 
is  for  the  reasonable  expenses  of  keeping  and  repairing  the  boat 
after  he  had  brought  it  to  the  shore ;  and  the  single  question  is, 
whether  a  promise  is  to  be  implied  by  law  from  the  owner  of  a  boat, 
upon  taking  it  from  a  person  who  has  found  it  adrift  on  tide-water 
and  brought  it  ashore,  to  pay  him  for  the  necessary  expenses  of  pre- 
serving the  boat  while  in  his  possession.  We  are  of  opinion  that 
such  a  promise  is  to  be  implied.  The  plaintiff,  as  the  finder  of  the 
boat,  had  the  lawful  possession  of  it,  and  the  right  to  do  what  was 
necessary  for  its  preservation.  Whatever  might  have  been  the  lia- 
bility of  the  owner  if  he  had  chosen  to  let  the  finder  retain  the  boat, 
by  taking  it  from  him  he  made  himself  liable  to  pay  the  reasonable 
expenses  incurred  in  keeping  and  repairing  it.  Nicholson  v.  Chap- 
man, 2  H.  Bl.  254,  258  and  note:  Amory  v.  Flyn,  10  Johns  102; 
Tome  V.  Four  Cribs  of  Lumber,  Taney  533,  547;  3  Dane  Ab.  143; 
Story  on  Bailments,  §§  121  a,  621  a;  2  Kent  Com.  (6th  Ed.)  356; 
I  Domat,  pt.  I,  lib.  2,  tit.  9,  art.  2;  Doct.  &  Stud.  c.  51  ;  Preston  v. 
Neale,  12  Gray,  222. 

Exceptions  sustained.^ 

'  Accord,  Bryant's  Estate,  180  Pa.  192  (1897),  where  an  agent  in  sole  charge 
of  his  principal's  estate  was  allowed  compensation  for  caring  for  the  estate 
after  the  death  of  the  principal,  who  died  suddenly  without  leaving  known 
heirs. 


PRESERVATION  OF  PROPERTY.  39 

BECKWITH  V.  FRISBIE. 

32  Vt.  559.— 1860. 

The  defendants,  private  carriers,  contracted  late  in  the  fall  to 
transport  by  canal  boat  a  cargo  of  oats  for  the  plaintiff  from  Bur- 
lington to  New  York.  The  parties  both  expected  that  the  boat 
would  reach  New  York  that  fall,  but  owing  to  the  lateness  of  the 
season,  and  without  any  fault  on  the  part  of  the  defendants,  the  boat 
was  frozen  in  the  canal,  at  Fort  Edward,  and  was  obliged  to  lie  there 
all  winter.  It  was  necessary  for  the  safety  of  the  boat  and  cargo  that 
the  oats  should  be  taken  from  the  vessel  and  stored  during  the  winter, 
and  the  defendants  accordingly  procured  this  to  be  done.  At  the 
opening  of  navigation  in  the  spring  the  oats  were  reloaded  and  car- 
ried to  New  York.  Plaintiff  had  paid  $75  of  the  freight  in  advance 
and,  after  the  boat  was  frozen  in,  had  advanced  to  the  captain  of 
the  boat  $25  who  was  in  need  of  money  to  pay  the  expenses  of  the 
boat.  Defendants  paid  $46.96  for  the  storage  of  the  oats  while  they 
were  delayed  at  Fort  Edward.  Upon  the  arrival  of  the  cargo  at 
New  York  defendants  claimed  the  full  freight  (less  the  $75  paid 
in  advance)  ;  the  $46.96  paid  for  storage;  and  would  not  deduct  the 
$25  advanced  by  plaintiff  to  the  captain  for  expenses  of  the  boat. 
In  order  to  get  his  oats  plaintiff  complied  with  the  demands  and 
now  sues  to  recover  the  $25  paid  to  the  captain ;  seventy-five  cents 
for  oats  fed  from  the  cargo  by  the  captain  to  the  boat's  horses ;  and 
the  $46.96  paid  for  storage. 

Aldis,  J. — *  *  =•=  *  The  next  charge  allowed  by  the  county 
court  is  for  forty-six  dollars  and  ninety-six  cents,  paid  for  storage 
and  care  of  the  oats  at  Fort  Edward.  The  defendants'  boat  was 
obstructed  by  ice  at  Fort  Edward,  and  could  proceed  no  further  till 
spring.  The  defendants  had  used  all  reasonable  diligence  and  dis- 
patch in  proceeding  from  Burlington  to  that  point,  and  so  far  are 
not  chargeable  for  any  fault  or  neglect.  The  safety  of  the  cargo, 
and  of  the  boat  also,  required  that  the  oats  should  be  removed  and 
safely  stored,  and  this  was  done  by  the  captain. 

The  closing  of  the  canal  by  ice  was  an  act  of  Providence  which 
excused  the  defendants  from  proceeding  further  till  navigation 
opened.  Thereupon  it  was  their  duty  to  use  ordinary  care  in  pre- 
serving the  property,  and  this  they  did.  The  inquiry  now  arises, 
who  shall  bear  the  expense  of  storing  the  property  safely  through 
the  winter,  the  plaintiff  or  the  defendants  ?  Nothing  was  said  about 
it  in  the  contract.  It  was  not  in  their  contemplation  when  the  bar- 
gain was  made,  and  no  provision  was  made  in  regard  to  it.  Both 
expected  and  intended  that  the  cargo  should  reach  New  York  that 
fall,  but  both  knew  that  the  freezing  of  the  canal  might  prevent  it. 
The  price  which  the  plaintiff  was  to  pay  the  defendants  was  six 
cents  per  bushel,  for  freight,  for  transporting  the  cargo  to  New 
York.     It  did  not  contemplate  that  the  property  should  be  stored 


40  BENEFITS    CONFERRED   WITHOUT    REQUEST. 

during .  the  winter  at  some  point  while  on  the  way.  Had  either 
party  expected  this  the  voyage  would  not  probably  have  been  begun. 
Had  the  question  been  raised  when  the  contract  was  made,  it  seems 
very  plain  to  us  that  the  plaintiff  could  not  reasonably  have  asked, 
nor  would  the  defendants  have  agreed,  that  they  should  bear  the 
expense  of  it.  It  is  expense  bestowed  on  the  plaintiff's  property, 
and  for  his  benefit ;  it  preserves  his  property,  but  does  not  aid  the 
defendants'  interest,  which  was  simply  to  transport  the  cargo  to 
New  York.  We  think  that  equity  between  these  parties  requires 
that  this  expense  should  be  borne  by  the  plaintiff.  And  if  he  v/as 
so  liable  in  equity  he  could  not  shift  the  burden  on  to  the  defend- 
ants by  refusing  to  pay  what  it  was  his  duty  to  pay.  The  law  raises 
an  implied  promise  on  his  part  to  pay  the  defendants  for  what  they 
might  be  obliged  to  expend  in  preserving  his  property,  when  that 
duty  was  thrown  upon  them  by  their  having  his  property  in  their 
care  as  carriers,  and  were  prevented  from  completing  their  contract 
by  an  act  of  Providence.  If  he  has  paid  it  he  cannot  recover  it 
back.     *     *     *     * 


-<  EARLE  V.  COBURN. 

130  Mass.  596.— 1881. 

Contract  upon  an  account  annexed  for  the  board  and  stabling 
of  the  defendant's  horse,  from  April  14,  1877,  to  January  17,  1878. 
Answer,  a  general  denial.  Trial  in  the  superior  court,  before 
Dewey,  J.,  who  reported  the  case  for  the  determination  of  this  court, 
in  substance  as  follows : 

It  was  in  evidence  that,  prior  to  April  14,  1877,  the  plaintiff  had 
exchanged  the  horse  in  question  with  the  defendant  for  a  wagon ; 
that  a  controversy  arose  between  them  as  to  the  character  of  the 
transaction,  and  its  effect  upon  the  title  of  each  in  the  property  ex- 
changed ;  that  the  defendant  returned  the  horse  to  the  stable  of  the 
plaintiff,  and  demanded  of  him  the  wagon ;  that  the  plaintiff  re- 
fused to  deliver  the  wagon,  and  the  defendant  thereupon  left  the 
horse  on  the  plaintiff's  premises  and  brought  an  action  against  the 
plaintiff  for  a  conversion  of  the  wagon  ;  that  at  the  trial  of  that 
action  the  then  plaintiff  introduced  evidence  to  show  that  the  trans- 
action was  of  such  a  character  that  the  then  defendant  acquired  no 
title  in  the  wagon,  and  that  he  acquired  no  title  in  the  horse ;  and 
evidence  was  introduced  by  the  then  defendant  to  show  that  the 
exchange  was  complete,  and  that  he  acquired  title  to  the  wagon 
and  parted  with  his  title  to  the  horse ;  and  that  in  that  action  the 
jury  returned  a  verdict  for  the  defendant,  upon  which  judgment 
was  duly  cnlcrcfl  by  the  court. 

It  was  also  in  eviflencc  at  the  trial  of  the  present  action  that,  at 
the  time  the  defendant  left  the  horse  at  the  plaintiff's  stable,  both 


TRESERVATIOX  OF  PROPERTY,  4I 

parties  disclaimed  ownership ;  that  the  plaintiff  told  the  defendant 
that  if  he  left  it  on  his  premises  he  must  do  so  on  his  own  responsi- 
bility and  expense ;  that  the  defendant  told  the  plaintiff  he  would 
have  nothinq-  more  to  do  with  the  horse,  and  would  not  be  responsi- 
ble for  it;  that,  on  Au^'ust  i,  1877,  the  plaintiff  told  the  defendant 
that  he  had  ^c^ot  a  horse  of  his  at  his  stable  and  should  chars^e  him 
for  its  board  and  kecpinq-,  and  that  the  defendant  replied  that  he 
had  no  horse  at  the  plaintiff's  stable. 

The  horse  was  fed  and  stabled  by  the  plaintiff  during  the  whole 
time  embraced  in  the  declaration,  and  the  defendant  made  no  other 
provision  for  his  care  and  keeping,  and  did  not  demand  him  of  the 
plaintiff,  and  gave  him  no  orders  respecting  the  same ;  and  the  plain- 
tiff testified  that  he  never  sent  the  defendant  any  bill  for  board  and 
stabling  of  the  horse,  and  never  made  any  demand  except  as  stated 
in  the  interview  of  August  i,  1877. 

Upon  this  evidence,  the  judge  ruled  that  the  action  could  not  be 
maintained,  directed  a  verdict  for  the  defendant,  and  reserved  the 
question  of  the  correctness  of  the  ruling  for  the  determination  of 
this  court. 

Lord,  J. — This  case  cannot  be  distinguished  in  principle  from 
Whiting  V.  Sullivan,  7  Mass.  107.  In  that  case  it  was  said,  "As  the 
law  wall  not  imply  a  promise,  wdiere  there  was  an  express  promise, 
so  the  law  will  not  imply  a  promise  of  any  person  against  his  own 
express  declaration ;  because  such  declaration  is  repugnant  to  any 
implication  of  a  promise."  As  applicable  to  that  case  and  to  the 
case  at  bar,  this  language  is  entirely  accurate.  There  may  be  cases 
where  the  law  will  imply  a  promise  to  pay  by  a  party  who  protests 
he  will  not  pay ;  but  those  are  cases  in  which  the  law  creates  a  duty 
to  perform  that  for  which  it  implies  a  promise  to  pay,  notwithstand- 
ing the  party  owing  the  duty  absolutely  refuses  to  enter  into  an 
obligation  to  perform  it.  The  law  promises  in  his  stead  and  in  his 
behalf.  If  a  man  absolutely  refuses  to  furnish  food  and  clothing 
to  his  wife  or  minor  children,  there  may  be  circumstances  under 
wdiich  the  law  will  compel  him  to  perform  his  obligations,  and  will 
of  its  own  force  imply  a  promise  against  his  protestation.  But 
such  promise  will  never  be  implied  against  his  protest,  except  in 
cases  where  the  law  itself  imposes  a  duty ;  and  this  duty  must  be  a 
legal  duty.  The  argument  of  the  plaintiff  rests  upon  the  ground 
that  a  moral  duty  is  sufficient  to  raise  an  implied  promise,  as  well 
as  a  legal  duty.  He  cites  no  authority  for  this  proposition,  and 
probably  no  authority  can  be  found  for  it.  The  common  law  deals 
with  and  defines  legal  duties,  not  moral.  Moral  duties  are  defined 
and  enforced  in  a  different  forum.  Under  the  particular  circum- 
stances of  this  case,  it  would  be  futile  to  inquire  what  moral  duties 
were  involved,  or  upon  whom  they  devolved.  It  is  sufficient  to  say 
that  no  such  legal  duty  devolved  upon  the  defendant  as  to  require 
him  to  pay  for  that  for  which  he  refused  to  become  indebted.  In  Bos- 
ton Ice  Co.  v.  Potter,  123  Mass.  28,  the  court  refused  to  hold  the  de- 
fendant to  an  implied  promise  to  pay  for  ice  which  he  had  received 


42  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

and  consumed  during  a  year  or  more ;  and  this  upon  the  ground 
that  a  promise  v/ill  not  necessarily  be  implied  from  the  mere  fact 
of  having  derived  a  benefit.  The  cases  arising  in  this  country  and 
in  England  are  collated  in  the  opinion  in  that  case.  Those  cases, 
equally  with  Whiting  v.  Sullivan,  ubi  supra,  sustain  the  ruling  of 
the  presiding  judge  in  this  case. 

Judgment  on  the  verdict.^ 


^  BARTHOLOMEW  v.  JACKSON. 

20  Johns.  (N.  Y.)  28. — 1822, 

In  error,  on  certiorari  to  a  justice's  court.  Jackson  sued  Bar- 
tholomew before  a  justice,  for  work  and  labor,  etc.  B.  pleaded  non 
assumpsit.  It  appeared  in  evidence,  that  Jackson  owned  a  wheat 
stubble-field,  in  which  B.  had  a  stack  of  wheat,  which  he  had  prom- 
ised to  remove  in  due  season  for  preparing  the  ground  for  a  fall 
crop.  The  time  for  its  removal  having  arrived,  J.  sent  a  message  to 
B.,  which,  in  his  absence,  was  delivered  to  his  family,  requesting 
the  immediate  removal  of  the  stack  of  wheat,  as  he  wished,  on  the 
next  day,  to  burn  the  stubble  on  the  field.  The  sons  of  B.  answered, 
that  they  would  remove  the  stack  by  ten  o'clock  the  next  morning. 
J.  waited  until  that  hour,  and  then  set  fire  to  the  stubble  in  a  re- 
mote part  of  the  field.  The  fire  spreading  rapidly,  and  threatening 
to  burn  the  stack  of  wheat,  and  J.,  finding  that  B.  and  his  sons  neg- 
lected to  remove  the  stack,  set  to  work  and  removed  it  himself,  so 
as  to  secure  it  for  B. ;  and  he  claimed  to  recover  damages  for  the 
work  and  labor  in  its  removal.  The  jury  gave  a  verdict  for  the 
plaintiff  for  fifty  cents,  on  which  the  justice  gave  judgment,  with 
costs. 

Platt,  J.,  delivered  the  opinion  of  the  court.  I  should  be  very 
glad  to  affirm  this  judgment ;  for  though  the  plaintiff  was  not  legally 
entitled  to  sue  for  damages,  yet  to  bring  a  certiorari  on  such  a  judg- 
ment was  most  unworthy.  The  plaintifif  performed  the  service 
without  the  privity  or  request  of  the  defendant ;  and  there  was,  in 
fact,  no  promise,  express  or  implied.  If  a  man  humanely  bestows 
his  labor,  and  even  risks  his  life,  in  voluntarily  aiding  to  preserve 
his  neighbor's  house  from  destruction  by  fire,  the  law  considers  the 
service  rendered  as  gratuitous,  and  it,  therefore,  forms  no  ground 
of  action.    The  judgment  must  be  reversed. 

Judgment  reversed. 

'  Accord,  Force  v.  Haines,  2  Harr.  (N.  J.)  385  (1840)  ;  Coleman  v.  United 
States,  152  U.  S.  96  (1893). 


PRESER\'ATIOX    OF    PROPERTY.  43 

CALVERT  V.  ALDRICH.  ' 

99  Mass.  74. — 1868. 

Foster,  J. — The  issue  in  this  action  is  on  an  account  of  one  co- 
tenant  in  common  against  another  to  recover  from  the  defendant  in 
set-off  part  of  the  cost  of  certain  needful  repairs  made  by  the  plain- 
tiff in  set-off  upon  the  common  property.  It  was  not  founded  upon 
any  contract  between  the  parties,  but  upon  a  supposed  legal  obliga- 
tion which,  if  its  existence  were  established,  the  law  would  imply 
a  promise  to  fulfill. 

The  doctrine  of  the  common  law  on  this  subject  is  stated  by  Lord 
Coke  as  follows:  "If  two  tenants  in  common  or  joint  tenants  be  of 
an  house  or  mill,  and  it  fall  in  decay,  and  the  one  is  willing  to  repair 
the  same,  and  the  other  w\\\  not,  he  that  is  willing  shall  have  a  writ 
de  reparatione  facienda,  and  the  writ  saith  ad  reparationem  ef  sus- 
tentationeni  ejusdem  domiis  tcnantiir,  whereby  it  appeareth  that 
owners  are  in  that  case  bound  pro  bono  publico  to  maintain  houses 
and  mills  which  are  for  habitation  and  use  of  men."  Co.  Litt.  200 
b ;  lb.  54  b.  And  in  another  place  he  says :  'Tf  there  be  two  joint 
tenants  of  a  wood  or  arable  land,  the  one  has  no  remedy  against  the 
other  to  make  inclosure  or  reparations  for  safeguard  of  the  wood 
or  corn,"  but  if  there  be  two  joint  tenants  of  a  house,  the  one  shall 
have  his  writ  de  reparatione  facienda  against  the  other.  This  is 
said  to  be  because  of  "the  preeminence  and  privilege  which  the  law 
gives  to  houses  which  are  for  men's  habitation."  Bowie's  Case,  11 
Co.  82. 

In  Carver  v.  Miller,  4  Mass.  561,  it  was  doubted  by  Chief  Justice 
Parsons  whether  these  maxims  of  the  common  law,  as  applied  to 
mills,  are  in  force  here,  especially  since  the  provincial  statute  of 
7  Anne,  c.  i,  revised  by  St.  1795,  c,  74.    *    *    *     * 

Doane  v.  Badger,  12  Mass.  65,  was  an  action  on  the  case.  The 
plaintiff  had  a  right  to  use  a  well  and  pump  on  the  defendant's  land ; 
and  the  defendant  had  removed  the  pump  and  built  over  the  well, 
thereby  depriving  the  plaintiff  of  the  use  of  the  water.  The  judge 
before  whom  the  case  was  tried  had  instructed  the  jury  that  the  de- 
fendant, by  the  terms  of  a  deed  under  which  he  claimed,  was  bound 
to  keep  the  well  and  pump  in  repair,  although  they  were  out  of  re- 
pair when  he  purchased,  and,  without  any  previous  notice  or  request, 
was  liable  in  damages  for  the  injury  the  plaintiff  had  sustained  by 
his  neglect  to  make  repairs.  The  court  held  that  no  such  evidence 
was  admissible  under  the  declaration,  the  cause  of  action  stated  be- 
ing a  misfeasance,  and  the  proof  offered  being  of  a  nonfeasance 
only ;  also,  that  a  notice  and  request  were  indispensable  before  any 
action  could  be  maintained.  Mr.  Justice  Jackson  in  delivering  the 
opinion  made  some  general  observations,  unnecessary  to  the  decision 
of  the  cause,  the  correctness  of  which  requires  a  particular  examina- 
tion.   He  said  that  the  action  on  the  case  seems  to  be  a  substitute 


44  BENEFITS    CONFERRED   WITHOUT    REQUEST. 

for  the  old  zvrit  de  reparatione  facienda  between  tenants  in  common, 
and  could  not  be  brought  until  after  a  request  and  refusal  to  join  in 
making-  the  repairs.  He  added :  "From  the  form  of  the  writ  in 
the  register,  it  seems  that  the  plaintiff,  before  bringing  the  action, 
had  repaired  the  house,  and  was  to  recover  the  defendant's  propor- 
tion of  the  expense  of  those  repairs.  The  writ  concludes,  'in  ipsius 
dispendmm  non  modicum  ct  gravamen.'  It  is  clear  that  until  he 
had  made  the  repairs  he  cannot  in  any  form  of  action  recover  any- 
thing more  than  for  his  loss  as  of  rent,  etc.,  while  the  house  re- 
mains in  decay.  For  if  he  should  recover  the  sum  necessary  to 
make  the  repairs,  there  would  be  no  certainty  that  he  would  apply  the 
money  to  that  purpose."  Mumford  v.  Brown,  6  Cowen  475,  a  per 
curiam  opinion  of  the  Supreme  Court  of  New  York,  and  Coffin  v. 
Heath,  6  Met.  80,  both  contain  obiter  dicta  to  the  same  effect,  ap- 
parently founded  upon  Doane  v.  Badger,  without  further  research 
into  the  ancient  law.  If  it  were  true  that  the  writ  de  reparatione 
was  brought  by  one  cotenant,  after  he  had  made  repairs,  to  recover 
of  his  cotenant  a  due  proportion  of  the  expense  thereof,  there  would 
certainly  be  much  reason  for  holding  an  action  on  the  case  to  be  a 
modern  substitute  for  the  obsolete  writ  de  reparatione.  But  all  the 
Latin  forms  of  the  writ  in  the  Register,  153,  show  that  it  was 
brought  before  the  repairs  were  made,  to  compel  them  to  be  made 
under  the  order  of  court.  Indeed,  this  is  implied  in  the  very 
style  by  which  the  writ  is  entitled,  de  reparatione  facienda,  viz. : 
of  repairs  to  be  made ;  the  future  participle  facienda  being  incapable 
of  any  other  meaning.  This  also  appears  in  Fitzherbert,  N.  B.  127, 
where  the  writ  between  cotenants  of  a  mill  is  translated ;  the  words, 
in  ipsius  dispendium  non  modicum  et  gravamen,  quoted  by  Judge 
Jackson,  being  correctly  rendered,  "to  the  great  damage  and  griev- 
ance of  him,"  the  said  plaintiff.  Fitzherbert  says :  "The  writ  lieth 
in  divers  cases ;  one  is,  where  there  are  three  tenants  in  common  or 
joint  or  pro  indiviso  of  a  mill  or  a  house,  etc.,  which  falls  to  decay, 
and  the  one  will  repair  but  the  other  will  not  repair  the  same,  he 
shall  have  this  writ  against  them." 

In  the  case  of  a  ruinous  house  which  endangers  the  plaintiff's  ad- 
joining house,  and  in  that  of  a  bridge  over  which  the  plaintiff  has  a 
passage,  which  the  defendant  ought  to  repair,  but  which  he  suffers 
to  fall  to  decay,  the  words  of  the  precept  are,  "Command  A.  that," 
etc.,  "he,  together  with  B.  and  C,  his  partners,  cause  to  be  repaired." 
The  cases  in  the  Year  Books  referred  to  in  the  margin  of  Fitz- 
herbert confirm  the  construction  which  we  regard  as  the  only  one 
of  which  the  forms  in  that  author  are  susceptible,  namely,  that  the 
writ  de  reparatione  was  a  process  to  compel  repairs  to  be  made 
under  the  order  of  court.  Tlicrc  is  nothing  in  them  to  indicate  that 
an  action  for  damages  is  maintainable  by  one  tenant  in  common 
against  another  because  the  defendant  will  not  join  with  the  plain- 
tiff in  repairing  the  common  property.  In  a  note  to  the  form  in 
the  case  of  a  bridge,  it  is  said  in  Fitzherbert:  "In  this  writ  the  party 
recovers  his  damages,  and  it  shall  be  awarded  that  the  defendant 


PRESERVATION  OF  TROPERTY.  45 

repair,  and  that  he  be  distrained  to  do  it.  So  in  this  writ  he  shall 
have  the  view  contra,  if  it  be  but  an  action  on  the  case  for  not  re- 
pairing, for  there  he  shall  recover  but  damages."  There  is  no  doubt 
that  an  action  on  the  case  is  maintainable  to  recover  damages  in 
cases  where  the  defendant  is  alone  bound  to  make  repairs  for  the 
benefit  of  the  plaintiff  without  contribution  on  the  part  of  the  latter, 
and  has  neglected  and  refused  to  do  so.  See  Tenant  v.  Goldwin, 
6  Mod.  311  ;  s.  c.  2  Ld.  Raym.  1089;  i  Salk.  21,  360. 

The  difficulty  in  the  way  of  awarding  damages  in  favor  of  one 
tenant  in  common  against  his  cotenant  for  neglecting  to  repair  is, 
that  both  parties  are  equally  bound  to  make  the  repairs,  and  neither 
is  more  in  default  than  the  other  for  a  failure  to  do  so.  Upon  a 
review  of  all  the  authorities,  we  can  find  no  instance  in  England 
or  this  country  in  which,  between  cotenants,  an  action  at  law  of 
any  kind  has  been  sustained,  either  for  contribution  or  damages, 
after  one  has  made  needful  repairs  in  which  the  other  refused  to 
join.  We  are  satisfied  that  the  law  was  correctly  stated  in  Con- 
verse v.  Ferre,  ii  Mass.  325,  by  Chief  Justice  Parker,  who  said: 
"At  common  law  no  action  lies  by  one  tenant  in  common,  who  has 
expended  more  than  his  share  in  repairing  the  common  property, 
against  the  deficient  tenants,  and  for  this  reason  our  legislature  has 
provided  a  remedy  applicable  to  mills."  The  writ  de  rcparationc 
facienda  brought  before  the  court  the  question  of  the  reasonable- 
ness of  the  repairs  proposed,  before  the  expenditures  were  incurred. 
It  seems  to  have  been  seldom  resorted  to ;  perhaps  because  a  divi- 
sion of  the  common  estate  would  usually  be  obtained  where  the 
owners  were  unable  to  agree  as  to  the  necessity  or  expediency  of 
repairs.  Between  tenants  in  common,  partition  is  the  natural  and 
usually  the  adequate  remedy  in  every  case  of  controversy.  This  is 
the  probable  explanation  of  the  few  authorities  in  the  books,  and 
of  the  obscurity  in  which  we  have  found  the  whole  subject  involved. 
But  if  we  have  fallen  into  any  error  in  our  examination  of  the  origi- 
nal doctrines  of  the  common  law  of  England,  it  is  at  least  safe  to 
conclude  that  no  action  between  tenants  in  common  for  neglecting 
or  refusing  to  repair  the  common  property,  or  to  recover  contribu- 
tion for  repairs  made  thereon  by  one  without  the  consent  of  the 
other,  has  been  adopted  among  the  common-law  remedies  in  Massa- 
chusetts. 

This  result  is  in  accordance  with  the  rulings  at  the  trial. 

Exceptions  overruled. 


COSGRIFF  ET  AL.  V.  FOSS  et  al.  } 

152  N.  Y.  104. — 1897. 

Action  of  partition. 

Vann,  J. — The  question  presented  by  this  appeal  is  whether  a 
tenant  in  common,  who  is  also  a  lessee  of  his  cotenant,  can  be  al- 
lowed in  partition  for  improvements  made  upon  the  property  in  the 


46  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

course  of  his  tenancy,  which  enhanced  its  value,  and  were  made  with 
the  knowledge,  but  without  the  consent,  of  the  cotenant,  when  the 
effect  of  such  improvements  was  not  to  protect  or  preserve  the 
property,  but  to  aid  the  tenant  in  carrying  on  a  business  then  prose- 
cuted by  him  upon  the  premises,  the  increased  income  from  which 
was  not  shared  with  the  cotenant. 

At  common  law,  a  tenant  in  common,  who  has  made  permanent 
improvements,  as  distinguished  from  ordinary  repairs,  upon  the 
common  property,  cannot  recover  from  his  cotenant  any  part  of  his 
expenditures  for  that  purpose,  unless  they  were  made  at  the  re- 
quest or  with  the  consent,  express  or  implied,  of  the  latter.  Mum- 
ford  V.  Brown,  6  Cow.  475 ;  Jackson  v.  Bradt,  2  Caines  302 ;  Taylor 
V.  Baldwin,  10  Barb.  582,  590,  626;  Putnam  v.  Ritchie,  6  Paige  390, 
405 ;  Crest  v.  Jack,  3  Watts  238 ;  Gregg  v.  Patterson,  9  Watts  &  S. 
197,  209;  Story,  Eq.  Jur.,  §  1235 ;  Knapp  on  Partition  10.  In  some 
states  this  is  the  rule,  even  when  the  expenditure  was  necessary  to 
keep  the  property  from  going  to  ruin ;  while,  in  others,  repairs  es- 
sential to  preservation  may  be  made  at  the  expense  of  the  cotenants, 
in  proportion  to  their  respective  shares,  without  their  consent,  es- 
pecially if  such  consent  is  unreasonably  withheld  after  due  request. 
It  is  strictly  limited  to  repairs,  however,  and  does  not  extend  to  im- 
provements not  essential  to  protect  the  property,  but  designed  to 
enhance  its  value.  Loring  v.  Bacon,  4  Mass.  575 ;  Beaty  v.  Bord- 
well,  91  Pa.  St.  438;  Stackable  v.  Stackpole  (Mich.),  32  N.  W.  808; 
Wiggin  V.  Wiggin,  43  N.  H.  561  ;  Alexander  v.  Ellison,  79  Ky. 
148 ;  Hancock  v.  Day,  36  Am.  Dec.  293. 

The  rule  of  courts  of  equity  upon  the  subject  is  more  liberal,  and 
extends  to  improvements  in  special  cases ;  as,  in  an  action  of  par- 
tition, for  instance,  the  court  acts  upon  the  principle  that  the  party 
who  asks  for  equitable  relief  will  be  required  to  do  what  is  equitable 
himself.  The  rule,  however,  is  carefully  limited  to  those  cases 
where  special  circumstances  give  rise  to  strong  equitable  rights. 
Putnam  v.  Ritchie,  6  Paige  390;  Ford  v.  Knapp,  102  N.  Y.  135, 
6  N.  E.  283. 

Some  authorities  sanction  repairs  that  are  absolutely  necessary 
to  preserve  houses  and  mills,  already  erected  and  in  being,  but  re- 
fuse to  extend  the  rule  to  other  kinds  of  property.  Dech's  Appeal, 
57  Pa.  St.  467,  472;  Anderson  v.  Greble,  i  Ashm.  136,  139.  Chan- 
cellor Kent  says :  "One  joint  tenant,  or  tenant  in  common,  can 
compel  the  others  to  unite  in  the  expense  of  necessary  reparations 
to  a  house  or  mill  belonging  to  them,  though  the  rule  is  limited  to 
those  parts  of  the  common  property,  and  does  not  apply  to  fences 
inclosing  wood  or  arble  land."  4  Kent  Comm.  370.  Other  cases 
j)crmit  improvements  to  be  set  off  against  rents  and  profits,  but  not 
cfiarged  against  the  body  of  the  estate,  unless  made  with  the  knowl- 
edge and  consent  of  the  other  owners.  Pickering  v.  Pickering,  6^ 
N.  H.  468,  3  Atl.  744;  Luck  V.  Luck,  113  Pa.  St.  256,  6  Atl.  142; 
Jones  V.  Jones,  23  Ark.  212.  Where  one  tenant  in  common,  who 
was  in  possession,  supposing  himself  to  be  the  legal  owner  of  the 


PRICSERVATION    OF    PROPERTY.  47 

entire  premises,  erected  valuable  buildings  thereon,  he  was  held  en- 
titled to  an  equitable  partition,  so  as  to  give  him  the  benefit  of  his 
improvements.  Town  v.  Needham,  3  Paige  546.  So,  in  an  action 
for  partition,  where  actual  division  is  possible,  the  cotenant  who  has 
made  substantial  improvements  upon  one  parcel  is  usually  allotted  the 
part  that  he  has  enhanced  in  value,  or  so  much  thereof  as  repre- 
sents his  share  in  the  whole  tract.  Freem.  Coten.,  §  509;  17  Am.  & 
Eng.  Enc.  Law  758.  But,  when  the  property  is  so  situated  that  ac- 
tual partition  is  out  of  the  question,  even  courts  of  equity,  in  this 
state,  do  not  require  contribution  for  improvements,  as  distinguished 
from  repairs,  except  in  the  case  of  mills,  houses,  and  the  like,  under 
circumstances  of  special  necessity.  The  erection  of  a  new  and  inde- 
pendent building,  the  improvement  of  farming  lands  by  fencing  or 
drainage,  the  opening  of  mines  or  quarries,  or  the  making  of  changes 
that  are  in  no  sense  designed  to  protect  or  preserve  the  property, 
but  simply  to  improve  it  and  increase  its  value,  do  not  warrant  the 
court  in  requiring  a  cotenant  who  has  not  consented  to  contribute 
to  the  expense.  This  is  just,  as  an  extension  of  the  rule  from  re- 
pairs to  general  improvements,  in  the  nature  of  new  erections,  might 
enable  one  cotenant  to  "improve"  the  other  out  of  his  share  in  the 
property.  The  case  of  Green  v.  Putnam,  i  Barb.  500,  is  sometimes 
cited  as  an  authority  sanctioning  an  allowance  for  the  erection  of  a 
new  building  without  consent.  In  that  case,  however,  the  plaintiff 
had  been  consulted,  and  had  consented  to  the  construction  of  a 
smaller  building,  but  objected  when  it  was  ascertained  that  a  larger 
one  was  in  process  of  erection.  The  allowance  made  was  "limited 
to  the  sum  necessary  for  erecting  the  smaller  building,  and  no  relief 
was  granted  for  the  amount  expended  without  the  plaintiff's  con- 
sent." 

The  leading  cases  in  this  state  are  Scott  v.  Guernsey,  48  N.  Y. 
106,  which  is  relied  upon  by  the  respondents,  and  Ford  v.  Knapp, 
102  N.  Y.  135,  6  N.  E.  283,  which  is  relied  upon  by  the  appellant. 
In  the  former  case,  two  remaindermen,  without  the  consent  of  the 
others,  but  with  the  consent  of  the  life  tenant,  erected  buildings 
upon  the  premises,  under  an  agreement  with  the  life  tenant  that  they 
might  put  up  the  buildings  and  receive  the  rents.  One  building, 
erected  in  1833,  increased  the  value  of  the  land  by  $750,  and  another, 
erected  in  1841,  by  $200.  In  1854,  when  the  life  tenant  died,  the  rents 
received  had  largely  exceeded  the  value  of  the  buildings  and  the  in- 
terest on  the  investment.  It  was  held  that  the  remaindermen  who 
thus  improved  the  property  were  not  entitled  to  any  compensation 
therefor,  and,  upon  partition,  could  not  exact  reimbursement  from, 
or  claim  a  lien  upon,  the  shares  of  their  cotenants.  The  court  said : 
"There  was  no  consent,  mistake,  or  other  equitable  ground  in  this 
case  for  relieving  the  party  who  made  his  investment  with  full 
knowledge  of  the  facts,  voluntarily,  and  without  any  inducement 
offered  by  other  cotenants.  Had  the  appellants  offered  to  share 
their  rents,  upon  being  paid  a  due  proportion  of  the  value  of  the 
improvements  after  the  termination  of  the  life  estate,  it  might  have 


48  BENEFITS    CONFERRED   WITHOUT    REQUEST. 

afforded  a  better  ground  to  claim  compensation.  The  appellants 
are  not  within  the  reason  of  any  of  the  adjudged  cases,  where  relief 
has  been  granted  in  partition  for  money  expended  in  improvements 
by  one  of  several  tenants  in  common."  In  Ford  v.  Knapp  "the  de- 
fendants were  tenants  in  common  with  one  Whittaker  of  a  mill 
property  badly  run  down,  and  out  of  repair."  Whittaker's  interest 
was  sold  upon  execution  to  the  defendants,  "but  subsequent  judg- 
ment creditors  redeemed  and  acquired  the  title  of  the  debtor."  "Dur- 
ing the  fifteen  months  between  the  sale  and  redemption,  the  de- 
fendants expended  a  large  amount  upon"  a  gristmill  on  the  prem- 
ises. Some  of  the  machinery,  adapted  to  and  once  used  for  merchant 
milling,  was  out  of  date  and  not  worth  repairing,  while  that  neces- 
sary for  custom  work  was  still  in  use,  but  "dilapidated  and  ineffi- 
cient." The  dam  was  repaired,  a  new  water  wheel  made,  and  the 
machinery  so  changed  as  to  do  good  custom  work,  which  was  classed 
by  the  referee  who  decided  the  case  as  repairs,  "while  the  addition 
to  the  buildings  and  the  introduction  of  new  machinery  and  appli- 
ances for  a  merchant  mill  he  classed  as  improvements.  These  re- 
pairs and  improvements  largely  increased  the  market  value  of  the 
property.  Before  they  were  made,  a  generous  estimate  of  that  value 
did  not  exceed  $8,000,  while  on  the  sale  in  partition  it  brought  about 
double  that  amount."  The  supreme  court  refused  "any  allowance 
either  for  repairs  or  improvements."  This  court,  referring  to  Scott 
v.  Guernsey,  said :  "Here  were  reasons  enough  for  denying  any 
equity  to  the  improving  tenant,  and  the  case  stands  solidly  upon  its 
facts,  and  is  not  open  to  criticism.  But  it  does  not  deny  the  duty  of 
a  court  of  equity  in  a  proper  case  to  give  its  relief  upon  condition 
of  an  allowance  for  improvements,  and  does  not  undertake  to  specify 
all  the  cases  in  which  such  equity  shall  be  recognized.  Nor  shall  we 
undertake  any  such  dangerous  or  impossible  effort.  The  authorities 
leave  us  at  liberty  to  consider  whether,  upon  the  facts  and  circum- 
stances of  this  particular  case,  the  improving  tenant  ought  to  be 
protected,  and  furnish  us  the  power  to  grant  the  protection  if  it  may 
justly  be  demanded."  After  alluding  to  some  of  the  facts  of  the 
case  then  in  hand,  the  court  continued:  "The  defendants  acted  in 
the  presence  of  a  peculiar  and  unusual  emergency.  They  acted  in 
entire  good  faith.  The  repairs  were  necessary,  and  not  merely  a 
venture  or  speculation,  and  the  improvements  were  in  the  line  of 
restoration,  and  not  of  new  and  strange  enterprise.  What  they  did 
was  natural  and  normal  to  the  use  and  character  of  the  property, 
and  such  as  joint  owners  of  equal  ability  might  be  expected  to  join 
in  making.  They  offer  to  share  in  the  increased  income  thus  se- 
cured, and  in  every  respect  appear  to  have  acted  fairly."  The  court 
sent  the  case  back  for  a  division  of  the  proceeds  of  the  sale  accord- 
ing to  the  principles  stated  in  the  opinion,  and  for  an  accounting 
of  the  income  and  profits  which  the  defendants  offered  to  make. 

We  do  not  regard  the  two  cases  thus  reviewed  as  in  conflict.  In 
the  one,  special  equities  existed,  while,  in  the  other,  they  did  not, 
and  judgment  went  accordingly.     In  the  earlier  case,  those  who 


PRESERVATION  OF  PROPERTY.  49 

made  the  improvement  did  it  as  a  business  venture,  and  they  had 
received  back  from  it,  not  only  principal  and  interest  but  also  a 
large  profit,  which  they  did  not  offer  to  share  with  their  cotenants. 
In  the  later  case,  those  who  made  the  improvements  did  not  make 
them  as  a  business  venture,  but  to  save  the  property,  and  prevent 
the  "business  and  custom"  of  the  mill  from  drifting-  "into  other 
hands."  What  they  did  was  "in  the  line  of  restoration,"  not  of  in- 
dependent construction  ;  and  when  they  had  done  it,  and  had  doubled 
the  value  of  the  property,  they  offered  to  share  the  increased  profits 
with  their  cotenants.  The  improvements  were  made  upon  a  mill 
and  mill  dam,  which,  owing  to  their  peculiar  nature,  seem  always 
to  have  appealed  strongly  to  courts  of  equity  for  aid  through  con- 
tribution toward  repairs  and  reasonable  improvements,  so  as  to  keep 
pace  with  the  times,  accommodate  the  public,  and  prevent  loss  of 
custom. 

In  the  case  before  us  we  find  no  such  equitable  strength  in  the 
claim  of  the  appellant.  He  sustained  the  double  relation  to  his  co- 
tenants  of  tenant  by  lease  and  tenant  in  common.  Under  the  former 
relation  he  v/as  entitled  to  no  repairs,  but  was  bound  by  a  covenant 
in  the  lease  to  make  such  as  would  keep  the  premises  in  their  nor- 
mal condition,  except  depreciation  by  use  and  damages  by  the  ele- 
ments. The  improvements  were  made  mainly  for  the  purpose  of 
extending  his  business  and  increasing  his  sales,  in  which  his  co- 
tenants  had  no  interest.  He  had  the  right,  by  express  contract, 
to  remove  all  his  structures  during  the  term  of  his  lease.  The  na- 
ture of  the  property  did  not  permit  decay,  and  there  was  no  con- 
trolling necessity  for  making  the  changes  and  additions.  If  they 
had  not  been  made,  the  premises  would  not  have  depreciated  in 
value.  Some  of  the  work  was  done  after  this  action  was  com- 
menced, and  a  part  even  after  the  trial  was  in  progress.  It  does  not 
appear  that  the  appellant  offered  any  share  of  the  profits  to  his  co- 
tenants,  or  to  what  extent  the  value  of  the  premises  was  increased, 
or,  unless  inferentially,  that  they  would  sell  for  any  more  on  account 
of  the  improvements.  His  erections  were  in  the  nature  of  a  new 
and  independent  construction  to  enable  him  to  quarry  more  rock 
and  sell  it,  and  thus,  pro  fanto,  he  consumed  the  property.  They 
were  not  "in  the  line  of  restoration,"  but  of  a  business  venture.  We 
know  of  no  well-considered  case  in  this  state  that  would  authorize 
an  allowance  for  improvements  under  these  circumstances.  It  would 
be  a  dangerous  extension  of  the  rule  governing  the  subject,  which 
is  always  applied  with  caution,  to  permit  one  cotenant  to  run  the 
other  in  debt,  against  his  will,  for  unnecessary  improvements.  Equity 
requires  contribution  from  tenants  in  common  only  to  prevent  in- 
justice, and,  unless  the  rule  is  kept  well  in  hand,  it  is  liable  to  cause 
more  injustice  than  it  prevents.  The  judgment  should  be  afifirmed, 
with  costs.    All  concur. 

Judgment  affirmed. 

"Woodruff's  Cases — 4 


50  BENEFITS   CONFERRED   WITHOUT   REQUEST. 

V.     Preservation  of  Life. 

BRANDNER  v.  KREBBS. 

54  III.  App.  652. — 1894. 

Mr.  Justice  Gary. — February  21,  1893,  two  men,  one  the  brother 
of  the  appellant,  and  another  named  Plesher,  were  hurt  by  the  fall 
of  a  scaffold  at  a  building  where  they  were  at  work. 

The  appellee,  a  physician  and  surgeon,  rendered  services  in  the 
line  of  his  profession  to  Plesher,  and  the  question  in  the  case  is 
whether  the  services  were  rendered  at  the  request,  and  upon  the 
promise,  express  or  implied,  of  the  appellant  to  pay  for  them. 

That  Plesher  was  unconscious  is  not  disputed,  and  the  prepon- 
derance of  the  evidence  is  that  the  appellant  sent  a  messenger  for  a 
doctor,  and  the  messenger  brought  the  appellee,  and  that  after  he 
came,  the  appellant,  in  some  form  of  words  which  is  stated  vari- 
ously by  the  different  witnesses,  undertook  that  the  appellee  should 
be  paid. 

The  appellant  insists  that  if  he  incurred  any  liability,  it  was  only 
that  of  guarantor,  and  that  there  being  no  writing,  he  is  protected 
by  the  statute  of  frauds.  But  to  put  him  in  the  position  of  guaran- 
tor, it  is  essential  that  Plesher  should  have  been  liable  to  the  appellee. 
Brandt  Sur.  &  Guar.  56  et  seq;  Geary  v.  O'Niel,  jT)  ^^^-  593-  Plesher 
was  unconscious  when  the  appellee  came  to  attend  upon  him,  and 
although  the  services  were  for  his  benefit,  and  part  of  them  ren- 
dered after  he  regained  consciousness,  yet  there  is  not  a  syllable 
in  the  evidence  indicating  that  anybody  interested  ever  had  a  thought 
that  he  was  liable.  The  finding  of  the  court,  without  a  jury,  that 
the  appellant  was  the  party  to  whom  alone  credit  was  given,  cannot 
be  disturbed. 

The  motion  for  a  new  trial  assigned  as  the  only  ground  that  "the 
judgment  is  contrary  to  the  law  and  the  evidence."  Upon  such  a 
motion  affidavits  of  new  witnesses  are  not  admissible,  and  therefore 
those  filed  are  not  considered,  further  than  to  say  that  even  if  newly 
disclosed  evidence  had  been  ground  of  the  motion,  the  affidavits 
would  have  been  unavailing.    The  judgment  is  affirmed.^ 

'  "Shotilfl  a  mcflical  practitioner  he  called  by  an  unauthorized  person  to  a 
man  deprived  of  his  senses  hy  a  hlow,  rendering  immediate  relief  necessary  to 
save  life,  duty  would  require  it  to  be  given.  And  if  he  gave  it,  not  in  charity, 
but  expecting  to  be  paid,  the  law  would  create  a  promise  of  payment  from  the 
patient  who  in  fact  not  even  asked  for  the  aid,  or  consented  to  its  being  ren- 
dered, being  incapable  of  asking  or  consenting." — Bishop  on  Contracts,  §  231, 
citing  the  argument  in  Richardson  v.  Strong,  13  Ire.  106,  107. 


BENEFITS    INCIDENTALLY    CONFERRED.  51 


vi.    Benefits  Incidentally  Conferred. 

RUABON  STEAMSHIP  CO.  LIMITED  and  THE  LONDON 

ASSURANCE. 

[19CX)]  Appeal  Cases  6. — 1899. 

The  Ruabon,  belonging  to  the  appellants  and  insured  with  various 
underwriters,  including  the  respondents,  while  on  a  voyage  suf- 
fered damage  for  which  the  underwriters  were  liable.  She  was 
taken  into  dry  dock  in  Cardiff  for  the  purpose  of  having  the  neces- 
sary average  repairs  effected.  While  she  was  in  dry  dock  the  ap- 
pellants took  advantage  of  the  opportunity  to  have  her  surveyed  by 
Lloyd's  surveyor.  About  nine  months  had  still  to  run  before  a 
survey  was  necessary  in  order  that  she  might  retain  her  classifica- 
tion, but  by  Lloyd's  rules  the  owner  was  entitled  to  call  for  a  sur- 
vey at  the  time  it  was  made.  The  surveyor  certified  that  no  re- 
classification repairs  were  necessary,  and  she  retained  her  classifi- 
cation. An  average  statement  was  prepared  showing  that  the  total 
amount  due  from  the  underwriters  in  respect  of  the  repairs  was 
£822  14s.  lod.,  of  which  the  amount  due  from  the  respondents 
was  £82  5s.  The  respondents  contended  that  the  expenses  of 
taking  the  ship  into  dock  and  taking  her  out  again,  as  well  as  those 
incurred  in  the  use  of  the  dock,  ought  to  be  divided  between  the 
owners  and  the  underwriters  and  claimed  to  deduct  £2  5s.  on  this 
account.  They  therefore  paid  the  appellants  £80,  which  sum  was 
admitted  to  be  enough  if  the  respondents'  contention  was  right.  The 
appellants  brought  an  action  against  the  respondents  for  the  dis- 
puted £2  5s.  The  action  was  tried  before  Mathew,  J.,  without 
a  jury,  upon  mutual  admissions  that  Lloyd's  survey  was  made  as 
above  stated,  that  docking  was  necessary  for  the  vessel  to  pass 
Lloyd's  survey,  that  items  amounting  to  £55  were  necessarily  in- 
curred in  connection  with  the  docking,  but  that  she  did  not  go  into 
dock  for  the  purpose  of  Lloyd's  survey,  that  no  reclassification  re- 
pairs were  necessary,  and  that  the  time  had  not  arrived  at  which 
it  was  necessary  for  her  to  pass  Lloyd's  survey. 

Mathew,  J.,  gave  judgment  for  the  defendants  on  the  authority 
of  the  Vancouver  case  (11  App.  Cas.  573),  and  this  decision  v^^as 
affirmed  by  the  court  of  appeal  (Chitty  and  Collins,  L.  JJ.,  A.  L. 
Smith,  L.  J.  dissenting).  [1898]  i  Q.  B.  722.  The  plaintiffs 
brought  the  present  appeal. 

Lord  Brampton. — My  Lords,  I  entirely  concur  in  the  judgment 
which  has  been  delivered  by  the  Lord  Chancellor. 

I  take  the  general  rule  to  be  correctly  stated  by  Lord  Herschell 
in  the  Vancouver  case  (11  App.  Cas.  573),  that  where  there  is  a' 
partial  loss  in  consequence  of  injury  to  a  vessel  by  perils  insured 
against,  and  the  ship  is  actually  repaired  by  the  shipowner,  he  is 
entitled  to   recover  the  sum  properly  expended  in  executing  the 


52  BENEFITS    CONFERRED    WITHOUT    REQUEST. 

necessary  repairs,  less  the  usual  allowances,  as  the  measure  of  his 
loss. 

I  take  it  also  as  admitted  that,  but  for  the  matter  I  am  about  to 
mention,  it  would  not  be  disputed  that  the  respondents  were  liable 
under  their  policy  to  pay,  as  an  indemnity  against  the  loss  by  perils 
of  the  sea  which  occurred,  the  full  sum  of  £82  5s.  claimed.  This 
represents  prima  facie  their  responsibility.  The  respondents  seek 
to  reduce  this  amount  by  the  sum  of  £2  5s.  by,  reason  of  a  survey 
of  the  ship  which  the  plaintiffs,  the  owners,  caused  to  be  made  by 
Lloyd's  surveyor,  during  the  period  the  vessel  was  under  repair  on 
the  pontoon,  which  for  this  purpose,  I  may  call  a  dry  dock.  If  they 
are  right  in  making  a  reduction  on  this  account,  no  question  being 
raised  as  to  the  amount,  the  respondents  are  entitled  to  retain  the 
judgment  pronounced  in  their  favor  by  the  majority  of  the  court 
of  appeal. 

Since  the  decision  of  the  Vancouver  case,  by  which,  of  course, 
we  are  bound,  and  which  to  me  seems  to  be  founded  on  good  sense, 
it  is  not,  in  my  opinion,  open  to  question  that  where  two  operations 
are  essentially  necessary  to  be  performed  upon  the  hull  of  the  ship 
in  order  to  render  her  in  a  condition  to  justify  a  prudent  owner  in 
sending  her  again  to  sea — one  of  such  operations  being  to  effect 
repairs  for  the  cost  of  which  underwriters  are  responsible — the 
other  to  clean  and  scrape  the  ship  necessitated  by  wear  and  tear, 
the  cost  of  which  must  be  borne  by  the  owners  themselves,  and 
neither  of  such  operations  could  be  performed  unless  the  ship  were 
dry-docked,  and  both  of  which  operations  the  owners  and  under- 
writers, or  owners  acting  for  themselves  and  also  for  the  under- 
writers, deem  it  expedient  should  be  performed  at  one  and  the  same 
time,  or  that  one  should  immediately  follow  the  other  without  any 
substantial  interval  under  one  continuous  dry-docking :  in  such  cases 
the  cost  of  docking  and  all  dock  dues  during  the  period  the  vessel 
is  in  dock  must  be  shared  in  proportion,  having  regard  to  the  period 
of  joint  or  separate  actual  use  of  it. 

I  do  not,  however,  find  anything  in  the  Vancouver  case  which 
would  justify  such'  division  of  dock  dues,  unless  in  such  cases  as  I 
have  mentioned.  The  present  is  a  very  different  case.  The  Ruabon 
was  dry-docked  solely  to  enable  the  underwriters  to  effect  the  re- 
pairs for  which  they  were  liable  and  with  no  other  object,  and  no 
other  repair  was,  in  fact,  done  or  required  to  be  done  on  the  ship ; 
the  survey  of  Lloyd's  surveyor  was  in  no  way  necessary  for  any 
purpose  connected  with  the  work  performed  on  the  vessel,  but  was 
only  made  to  entitle  the  owners  to  reclassification  at  Lloyd's  and 
need  not  have  been  made  at  that  moment,  nor  at  any  particular  time, 
so  long  as  it  was  made  within  the  time  limited  by  Lloyd's  rules, 
which  had  then  nine  months  to  run.  It  is  quite  true  that  if  it  had 
not  then  been  made  it  would  have  been  necessary,  if  she  were  after- 
wards surveyed,  to  have  incurred  the  expense  of  again  dry-docking 
her  at  owner's  expense ;  and  to  that  extent  the  owners  might  have 
been  benefited.     I  say  might,  because  the  owners  might  have  sold 


BENEFITS    INCIDENTALLY    CONFERRED.  53 

the  vessel  in  the  meantime,  or  some  other  thing-  might  have  occurred 
to  render  such  survey  unnecessary.  Assuming,  however,  that  the 
expense  of  another  dry-docking  was  in  this  way  saved,  and  that  to 
that  extent  the  owners  were  benefited,  I  think  that  circumstance  is 
immaterial,  and  docs  not  warrant  a  claim  for  contribution  towards 
the  dock  dues  imperatively  incurred  on  the  underwriters'  account 
in  the  discharge  of  their  obligations.  I  think  that  such  contribution 
can  only  be  insisted  upon  in  those  cases  where  work  is  done  to  the 
vessel  itself,  by  two  or  more  persons,  each  separately  and  simul- 
taneously engaged  under  different  obligations  in  doing  portions  of 
it,  dry-docking  being  necessary  for  each.  If  the  respondents'  claim 
for  contribution  was  allowed,  I  see  no  reason  why  such  a  claim 
might  not  be  made  against  an  owner  who  while  his  ship  w^as  in  dry 
dock  sold  her,  subject  to  immediate  inspection  and  survey  by  his 
purchaser.  A  variety  of  other  cases  similar  in  character  might  be 
suggested.  I  think  the  owners,  in  causing  the  survey  to  be  made  in 
this  case,  were  taking  what  Lord  Herschell  (ii  App.  Cas.  588) 
termed  "an  incidental  advantage,"  "from  the  fact  that  a  damage 
arising  from  a  risk  within  the  poHcy  has  necessitated  repairs  at  the 
expense  of  the  underwriters" ;  and  he  puts,  by  w^ay  of  illustration, 
the  case  of  a  vessel  in  ordinary  course  requiring  scraping  and  paint- 
ing at  intervals  of  five  years,  and  before  the  time  for  such  operation 
has  arrived,  meeting  with  a  disaster  by  perils  of  the  sea  and  docked 
for  repairs,  for  which  underwriters  were  responsible,  and  the 
shipowner  taking  the  opportunity  of  scraping  and  painting  his 
ship.  In  repudiating  the  notion  that  the  entire  expenses  of  the  time 
occupied  in  that  operation  should  be  borne  by  the  shipowner,  he  adds, 
"if  they  were  to  be  borne  by  him  at  all."  This  observation  of  that 
noble  and  learned  Lord  makes  it  clear  to  me  that  he  did  not  con- 
template his  judgment  covering  such  a  case  as  this,  where  nothing 
was  in  fact  done  on  the  ship  and  the  survey  did  not  in  the  smallest 
degree  delay  the  completion  or  add  one  farthing  to  the  expense  of 
the  repairs  done  for  the  underwriter.  I  think,  therefore,  that  this 
appeal  should  be  allowed.^ 

[Concurring  opinions  were  also  rendered  by  the  Lord  Chancel- 
lor and  by  Lord  Macnaghten  ;  with  simple  concurrence  by  Lord 
Morris,  Lord  Davy  and  Lord  Robertson.] 

^  Accord,  as  to  non-recovery  for  benefits  incidentally  conferred :  United 
States  V.  Pacific  R.  R.,  120  U.  S.  227  (1887),  no  recovery  from  the  railroad  for 
railroad  bridges  rebuilt  by  the  government  during  the  civil  war  as  a  military 
necessity;  Loring  v.  Bacon,  4  Mass.  575  (iSaS),  no  recovery  from  the  owner 
in  fee  of  a  room  on  the  lower  floor  of  a  house  by  the  owner  in  fee  of  the  room 
over  it  and  the  roof,  who  repaired  the  roof  to  stop  leaks  which  prevented  com- 
fortable occupancy  of  the  whole  house.  As  to  the  repair  of  party  walls,  see 
note  in  66  L.  R.  A.  673. 


54  BENEFITS    CONFERRED    UPON    REQUEST. 

b.    Upon  Request, 
i.    In  General. 

POTTER  ET  AL.  V.  CARPENTER  et  al. 

yS  N.  Y.  157. — 1879. 

Rapallo,  J. — The  plaintiffs  in  their  complaint  claim  to  recover 
upon  a  note  made  by  the  defendants  for  $1,116.44,  dated  April  6, 
1874,  given  in  part  payment  for  a  stock  of  goods  sold  by  the  plain- 
tiffs to  the  defendants,  and  also  for  various  items  of  services  ren- 
dered from  time  to  time  in  the  years  1869,  1871,  1872  and  1874, 
amounting  in  the  aggregate  to  upwards  of  $2,000.  The  defendants 
in  their  answer  denied  the  allegations  as  to  the  services,  and  set  up  as 
counter-claims  an  alleged  indebtedness  of  the  plaintiffs  of  $200 
for  the  use  of  a  barn  for  four  years,  and  of  $1,000  for  services  in 
teaming  for  the  plaintiffs  from  1869  to  1874  at  $200  per  year,  with 
other  counter-claims.  The  plaintiffs  replied  that  the  use  of  the  barn 
was  not  worth  over  $10  a  year,  that  by  mutual  understanding  the 
plaintiffs  let  the  defendants  use  their  horse  and  wagon  as  an  equiva- 
lent therefor  and  for  the  other  services  claimed  in  the  answer. 

The  referee  found  for  the  plaintiffs  for  the  amount  due  on  the 
note,  and  also  found  that  the  plaintiffs  rendered  all  the  services 
alleged  in  the  complaint,  but  disallowed  their  claims  therefor,  find- 
ing, as  to  each  item,  that  they  were  rendered  under  some  agreement 
that  no  compensation  was  to  be  made  therefor  except  board,  in- 
fluence in  getting  situations  for  the  plaintiffs,  rent  of  a  store  and  the 
like.  But  in  respect  to  the  claims  for  the  use  of  the  barn  and  serv- 
ices in  teaming  set  up  in  the  answer,  the  referee  allowed  the  full 
amount  claimed  by  the  defendants,  and  he  reported  a  balance  in  de- 
fendants' favor  over  and  above  the  amount  due  on  the  note  of 
$700.96.  There  was  no  proof  of  any  express  agreement  on  the  part 
of  the  plaintiffs  to  pay  for  the  services  of  defendants  in  teaming,  or 
for  the  use  of  the  barn,  nor  w^as  there  any  proof  of  the  items  of  the 
charge  for  teaming,  farther  than  that  it  was  done  by  the  teams  and 
men  employed  by  the  factory  of  which  the  defendants  had  charge  and 
was  of  almost  daily  occurrence,  and  its  value  was  estimated  at  $200 
per  year.  The  testimony  on  these  points  is  quite  loose  and  general, 
and  from  the  findings  of  the  referee  as  finally  settled  after  an  appeal 
to  this  court,  it  appears  that  the  defendants  frequently  used  in  their 
business  a  horse  and  wagon  belonging  to  the  plaintiffs  and  that 
neither  party  kept  any  account  of  the  services  of  the  horse  and 
wagon  or  of  the  team  work. 

The  referee  further  finds  that  it  was  not  their  intention  to  keep 
any  such  account,  but  he  also  finds  that  the  parties  did  not  suppose 
that  one  service  was  equal  to  the  other,  and  that  there  was  no  under- 
standing between  them  that  one  service  should  be  set-off  against  the 


IN    GENERAL.  55 

Other.  The  referee  also  found  that  on  the  ist  of  April,  1874,  the  de- 
fendants were  indebted  to  the  plaintiffs  upon  an  open  account  for 
goods  sold  to  the  amount  of  $3,283.19,  and  afterwards  paid  the  same 
to  the  plaintiffs,  by  installments,  as  follows : 

May   7 $1,123  13 

May  7 140  58 

June  13 1,210  22 

September  11 814  26 

$3,288  19 

These  payments  were  all  made  after  the  alleged  indebtedness  of 
the  plaintiffs  to  defendants  for  $1,000  for  teaming  had  accrued,  and 
there  is  no  finding  or  proof  that  any  such  claim  was  ever  set  up 
until  this  action  was  brought. 

Upon  all  these  facts,  and  in  the  absence  of  proof  of  any  express 
agreement  to  pay  for  the  teaming,  we  do  not  think  that  such  an 
agreement  could  properly  be  implied.  The  finding  that  neither  party 
kept  or  intended  to  keep  any  account  of  it,  is  equivalent  to  a  finding 
that  it  was  not  their  intention  that  any  charge  should  be  made. 
The  findings  show  that  during  all  the  period  covered  by  these  trans- 
actions these  parties  were  in  the  habit  of  rendering  mutual  serv- 
ices to  each  other,  and  that  although  they  had  pecuniary  transac- 
tions to  a  considerable  amount,  these  services  were  not  brought,  nor 
intended  to  be  brought,  into  their  accounts.  Upon  such  a  state  of 
facts  a  promise  to  pay  cannot  be  implied,  and  these  services  must 
be  regarded  as  matters  of  mutual  accommodation  for  which  neither 
party  intended  to  make  any  charge  against  the  other.  This  is  not 
inconsistent  with  the  finding  of  the  referee  that  the  parties  did  not 
suppose  that  one  service  was  equal  to  the  other,  or  was  to  be  set- 
off against  the  other.  If  neither  party  intended  to  keep  any  account 
of  them  there  could  be  no  comparison  of  values,  or  setting-off  of 
one  against  the  other,  for  there  was  nothing  to  set-off. 

The  judgment  entered  upon  the  report  of  the  referee  and  the 
judgment  of  the  General  Term  should  be  reversed  and  a  new  trial 
ordered,  with  costs  to  abide  the  event. 

All  concur.^ 

^  See  also,  De  Cesare  v.  Flauraud,  69  App.  D.  (N.  Y.)  299  (1902). 


56  BENEFITS    CONFERRED    UPON    REQUEST. 

THOMAS   V.    THOMASVILLE   SHOOTING  'CLUB. 

121  N.  C.  238.— 1897. 

Action  by  P.  C.  Thomas  against  the  Thomasville  Shooting  Club. 
From  a  judgment  for  plaintiff,  defendant  appeals.     Affirmed. 

Faircloth,  C.  J. — This  action  is  brought  to  recover  for  services 
rendered  in  procuring  hunting  ground  leases  at  the  instance  of  de- 
fendant, which  were  accepted  and  received  by  the  defendant.  The 
plaintiff  testified  that  when  he  got  up  the  leases  he  did  not  expect  to 
charge  for  the  work,  if  they  should  pay  balance  on  his  house,  which 
has  been  paid,  and  should  pay  him  to  take  charge  of  their  business  at 
lucrative  wages.  The  defendant's  president  testified  that :  "The 
consideration  for  getting  up  the  leases  was  that  we  were  to  buy 
his  property,  and  make  him  steward  of  the  club  at  a  salary.  This 
was  not  a  contract.  It  was  our  intention.  *  *  *  Did  not  em- 
ploy him  as  steward  because  we  had  a  falling  out  about  the  house. 
*  *  *  I  told  him  to  get  up  the  leases  before  we  bought  the 
house."  So  that  there  was  no  contract  as  to  the  leases,  because  the 
construction  of  a  contract  does  not  depend  upon  what  either  party 
expected,  but  upon  what  both  agreed.  Brunhild  v.  Freeman,  yy 
N.  C.  128.  If  A.  agrees  to  render  services  to  B.,  and  it  is  agreed 
by  both  that  the  services  are  gratuitous,  and  not  to  be  charged  for, 
then  A.  cannot  recover.  If  A.  renders  services  to  B.,  and  the  work 
is  accepted,  the  law  implies  a  promise  by  B.  to  pay  the  value  of  the 
work.  This  is  too  familiar  to  need  citation  of  authority.  There  was 
evidence  as  to  the  value  of  the  services  and  the  house,  and  the  jury 
rendered  a  verdict  in  favor  of  the  plaintiff  for  $160.  In  apt  time, 
the  defendant  asked  the  court  to  instruct  the  jury  that  if  the  plain- 
tiff, when  he  got  up  the  leases,  expected  to  make  no  charge,  but 
expected  remuneration  afterwards  by  employment  from  the  de- 
fendant, he  could  not  recover  for  getting  up  the  leases.  This  prayer 
was  refused,  but  in  lieu  thereof  his  Honor  charged  that:  "If  Thomas 
did  not  intend  at  the  time  to  charge  for  getting  up  the  leases,  and 
this  was  known  to  the  defendant,  then  he  could  not  charge  and  re- 
cover for  the  same ;  but,  if  it  was  not  known  to  the  defendant  that 
Thomas  did  not  intend  to  charge,  then  Thomas  could  afterwards 
sue  for  and  recover  for  his  services  in  getting  up  the  leases."  Ex- 
ception. We  see  nothing  prejudicial  to  the  defendant  in  the  charge 
as  given,  which  included,  in  substance,  the  defendant's  prayer, 
or  so  much  thereof  as  he  was  entitled  to.  When  the  law  implies' 
a  promise  to  pay  for  work  done  and  accepted,  and  there  is  no  agreed 
price,  the  laborer  may  recover  the  reasonable  value  of  his  services, 
unless  there  be  some  agreement  or  understanding  that  nothing  is  to 
be  paid.  A  physician  makes  no  charge  for  professional  services  on 
his  books,  and  payment  is  resisted  on  the  ground  that  the  services 
were  intended  to  be  gratuitous,  and  the  jury  find  that  the  services 
were  rendered  without  any  agreement  to  pay  a  definite  sum.    Held, 


IN    GENERAL.  57 

that  the  law  implies  a  promise  to  pay  what  they  were  reasonably 
worth.  Prince  v.  McRae,  84  N.  C.  674.  Here,  as  the  implied 
promise  is  not  met  by  any  ai^reement  that  there  should  be  nothing 
paid,  the  plaintiff  is  entitled  to  recover.  Affirmed. 


HEWITT  V.  ANDERSON  et  al. 
56  Cal.  476.— 1880. 

Sharpstein,  J. — The  defendant  signed  and  caused  to  be  pub- 
lished an  instrument,  of  which  the  following  is  a  copy : 

"We,  the  undersigned,  promise  and  agree  to  pay  the  sum  set 
opposite  our  names  for  the  arrest  and  conviction  of  any  person  who 
has,  within  the  past  six  months,  maliciously,  and  with  intent  to 
commit  arson,  burned  any  building  in  the  town  of  San  Bernardino, 
or  who  may  in  the  future,  with  said  intent,  set  fire  to,  attempting  to 
burn,  or  shall  burn,  or  cause  to  be  burned,  any  building  in  the  limits 
of  said  town."  Opposite  the  name  of  each  of  the  defendants  a  cer- 
tain amount  is  set,  and  the  aggregate  of  those  amounts  is  $900,  for 
which  the  plaintiff  sues.  The  findings  of  the  court,  with  one  excep- 
tion, are  in  favor  of  the  plaintiff.  That  one  is  as  follows :  "That 
none  of  the  acts  of  the  plaintiff  were  done  with  a  view  to  obtaining 
said  reward,  or  any  part  thereof,  but  all  of  said  acts  were  done  with- 
out any  intention  of  claiming  said  reward,  or  any  part  thereof." 

If  this  finding  is  justified  by  the  evidence,  the  judgment  rendered 
in  favor  of  defendants  cannot  be  disturbed.  The  evidence  upon  this 
point  is  conflicting.  The  plaintiff,  on  the  trial,  testified  that  he 
did  do  the  acts  upon  which  he  bases  his  claim  to  the  reward  with 
a  view  to  obtaining  it.  On  the  other  hand,  there  was  evidence 
introduced  by  the  defendants  which  tended  to  prove  that  the  plain- 
tiff had  stated,  under  oath,  that  he  had  not  expected  any  reward. 
In  view  of  that  conflict,  we  would  not  disturb  a  finding  either  way. 
And  we  are  satisfied,  that  under  that  finding  the  plaintiff  cannot  re- 
cover in  this  action.  If  he  did  not  do  the  acts  upon  which  he  now 
bases  his  right  to  recover,  with  the  intention  of  claiming  the  re- 
ward in  the  event  of  his  accomplishing  what  would  entitle  him  to 
it,  he  cannot  recover.  If  he  had  not  known  that  a  reward  had  been 
offered,  he  might  upon  the  authority  of  some  cases  recover.  But 
we  are  not  aware  of  any  case  in  which  it  has  been  held  that  a  party, 
after  disclaiming  any  intention  to  claim  a  reward,  could  recover  it. 

Judgment  and  order  affirmed. 


58  BENEFITS    CONFERRED    UPON    REQUEST. 

WEBSTER  ET  AL.  V.  DRINKWATER. 
5  Greenl.  (Me.)  319.— 1828. 

Assumpsit  for  services  performed  and  moneys  expended.  Mr. 
Ilsley,  the  collector  of  the  customs  at  Portland,  being  duly  author- 
ized by  the  United  States  to  contract  for  the  building  of  two  new 
revenue  cutters,  with  their  boats  and  barges,  made  an  agreement 
under  seal  with  the  plaintiffs,  who  undertook,  for  a  certain  sum  of 
money,  to  build  and  complete  the  cutters  with  their  boats,  to  the 
satisfaction  and  approbation  of  the  collector,  or  such  person  as  he 
should  designate  and  appoint.  The  collector,  on  his  part,  agreed 
that  upon  their  completion,  and  the  production  of  a  certificate  from 
the  person  so  appointed,  that  they  were  built  in  all  respects  accord- 
ing to  the  contract,  he  would  pay  the  stipulated  sum.  The  agree- 
ment was  particular  as  to  the  size  and  manner  of  finishing  and  fur- 
nishing the  vessels,  and  contained  a  provision  respecting  the  ap- 
pointment of  a  person  to  superintend  the  building,  and  certify  that 
the  plaintiffs  had  performed  the  contract.  Under  this  provision  the 
defendant  was  appointed  the  superintendent ;  and  upon  the  comple- 
tion of  the  vessels  and  boats  contracted  for,  he  gave  them  the  cer- 
tificate required,  which  they  produced  to  the  collector,  and  there- 
upon received  of  him  the  money  agreed  for,  and  a  further  allowance 
for  certain  extra  bills,  of  which  they  claimed  payment.  At  the  time 
of  this  settlement  the  plaintiffs  said  to  the  collector  that  they  had 
made  a  bad  bargain,  and  had  done  more  work  on  the  vessels  than 
they  were  bound  to  do  by  the  contract,  though  no  more  than  the 
defendant,  as  superintendent,  had  insisted  was  within  it ;  and  that 
they  should  apply  to  congress  for  compensation  for  this  extra  labor 
and  expense ;  but  they  did  not  then  speak  of  any  pretense  of  claim 
against  the  defendant.  A  petition  was  accordingly  presented  to 
congress,  but  without  success. 

The  labor  and  materials  which  formed  the  subject  of  the  present 
suit,  were  proved  to  have  been  furnished  at  the  request  and  under 
the  direction  of  the  defendant,  in  his  capacity  of  agent  of  the  United 
States,  he  insisting,  and  the  plaintiffs  denying,  that  they  came  within 
the  meaning  of  the  contract. 

Upon  this  evidence,  the  chief  justice  left  it  to  the  jury  to  de- 
termine whether  any  work  had  been  done,  or  expenses  incurred  by 
the  plaintiffs,  in  building  and  completing  the  vessels,  not  required 
of  them  by  the  contract ;  and  if  so,  whether  it  was  done  and  in- 
curred under  an  engagement,  express  or  implied,  on  the  part  of 
the  defendant,  to  pay  for  the  same.  And  they  found  for  the  de- 
fendant ;  certifying  moreover,  that  some  extra  work  had  been  done, 
and  expense  incurred  by  the  plaintiffs,  respecting  which  the  de- 
fendant assumed  to  act  as  the  agent  of  the  United  States,  without 
authority,  by  contending  that  such  work  was  within  the  terms  of  the 
contract,  but  which  was  not  so  considered  by  the  jury.    The  coun- 


IN   GENERAL.  59 

sel  for  the  plaintiffs  contended  that  in  consequence  of  this  unlawful 
assumption,  the  law  raised  a  promise  on  the  part  of  the  defendant 
to  pay  for  such  extra  work  and  expense;  and  the  chief  justice  re- 
served that  question  for  the  consideration  of  the  court. 

Mellen,  C.  J. — The  question  reserved  at  the  request  of  the  plain- 
tiff's counsel,  is  whether  the  law  implies  a  promise  on  the  part  of  the 
defendant  to  pay  for  certain  extra  work  by  them  done  on  the  vessel, 
which  the  jury  have  found  was  beyond  the  terms  of  the  contract, 
and  such  as  the  defendant,  as  agent,  had  no  right  to  require.  They 
have  found  that  whatever  he  did  in  the  premises,  was  done  by  him, 
claiming  to  act  as  agent  on  the  part  of  the  United  States,  though 
as  to  such  extra  work,  he  exceeded  his  powers  in  requiring  it ;  and 
that  he  never  made  any  engagement,  express  or  implied,  to  pay  for 
it.  Still  it  is  contended  by  the  counsel,  that  in  existing  circum- 
stances, the  law  raises  a  promise  to  pay  this  extra  expense.  It  is  a 
principle  well  settled  that  a  promise  is  not  implied  against  or  with- 
out the  consent  of  the  person  attempted  to  be  charged  by  it.  Whit- 
ing V.  Sullivan,  7  Mass.  107.  And  where  one  is  implied,  it  is  be- 
cause the  party  intended  it  should  be,  or  because  natural  justice 
plainly  requires  it,  in  consideration  of  some  benefit  received. 

The  application  of  these  principles  is  perfectly  familiar  in  those 
cases  where  a  man  is  professedly  acting  in  his  own  behalf,  and  re- 
ceives the  benefit  which  is  the  consideration  of  promise  implied. 
The  point  of  inquiry  is  whether  the  law  is  the  same  when  the  man 
is  acting  in  a  certain  transaction  as  an  authorized  superintendent, 
but  in  some  particular  in  his  demand,  exceeds  his  authority,  and 
yet  receives  no  advantage  whatever  from  those  services,  for  the 
payment  of  which  it  is  contended  the  law  raises  a  promise ;  as  in  the 
case  under  consideration. 

The  terms  of  the  contract,  the  character  in  which  the  defendant 
was  connected  with  and  acted  in  the  transaction  we  are  examining, 
and  of  course,  the  nature  and  extent  of  his  authority,  were  all 
equally  well  known  to  both  parties.  Both  must  have  supposed  that 
the  defendant  considered  himself  as  requiring  no  more  than  he  had 
a  right  to  require,  because,  after  some  dispute,  his  requisitions  were 
compHed  with.  He  was  the  person  appointed  by  consent  of  all  con- 
cerned, to  superintend  the  building  of  the  vessel,  and  see  that  she 
should  be  built  in  all  respects  in  conformity  to  the  contract.  It  is 
not  pretended  that  in  discharge  of  his  duty  he  did  not  act  fairly  and 
faithfully.  On  the  contrary,  the  proceedings  of  the  plaintiffs  in 
applying  to  congress  for  some  allowance,  show  that  they  did  not 
rely  on  any  engagement  or  liability  on  the  part  of  the  defendant. 
From  these  facts  we  do  not  perceive  on  what  grounds  a  promise 
can  be  implied  by  law.  The  defendant  was  in  some  respects  a 
judge,  in  business  of  that  kind,  and  was  so  considered ;  and  surely 
his  honest  opinion  and  decision  ought  not  to  be  considered  as  sub- 
jecting him  to  an  action,  as  upon  an  implied  promise,  because  he  is 
found  to  have  transcended  his  delegated  authority  in  a  particular 
instance.     It  has,  however,  been  contended  by  the  counsel  for  the 


6o  BENEFITS    CONFERRED    UPON    REQUEST. 

plaintiffs  that  if  an  agent,  in  making  a  contract,  exceed  his  author- 
ity, he  must  be  holden  personally  as  to  the  amount  of  the  excess  ;  and 
several  of  the  cases  he  has  cited  may  be  considered  as  supporting 
that  position,  where  there  is  an  express  undertaking  on  the  part  of 
the  agent ;  and  the  doctrine  so  limited,  is  not  contested  by  the  de- 
fendant's counsel.  But  in  the  case  before  us  there  was  no  express 
contract,  nor  even  an  implied  one,  on  the  part  of  the  defendant,  as 
the  jury  have  found ;  and  his  character  and  duty  as  superintendent, 
taken  in  connection  with  the  manner  in  which  he  performed  that 
duty,  precludes  the  idea  of  a  promise  implied  by  law,  which  could 
bind  him.  On  what  consideration  should  such  a  promise  be  im- 
plied? The  defendant  received  no  benefit  from  the  services  per- 
formed beyond  the  written  contract ;  and  the  plaintiffs  were  not 
bound  to  perform  them,  and  they  never  pretended  that  they  were 
performed  on  the  ground  of  even  a  supposed  liability  on  his  part.  It 
is  urged,  however,  that  the  defendant  may  be  fairly  held  charge- 
able in  this  action,  upon  the  well-known  principle,  that  in  many 
cases  a  man  may,  as  it  is  expressed,  waive  a  tort,  and  seek  his  rem- 
edy for  damages  occasioned  by  it,  in  an  action  of  assumpsit.  The 
general  principle  is  not  denied ;  nor  the  authority  of  the  cases  cited 
to  this  point ;  but  their  application  to  the  case  before  us  is  denied 
on  two  grounds :  first,  because  in  all  of  them  except  one,  the  sum 
sued  for  had  actually  been  received  by  the  defendant  in  money,  or  in 
services  of  which  he  had  received  the  benefit ;  and  in  the  excepted 
case  the  officer  received  the  tonnage  duty  without  any  authority  of 
law,  and  in  the  same  manner  had  accounted  for  it  to  government ; 
an  appropriation  he  had  no  right  to  make,  and  which  sum  the  party 
suffering  could  not  obtain  from  government  by  any  legal  pro- 
cess. The  second  reason  is  that  in  the  present  case  there  has  been 
no  tort  committed,  and  so  none  could  be  waived.  The  defendant 
has  merely  done  what  he  supposed  and  believed  w^as  his  duty,  pur- 
suant to  the  contract,  and  in  the  due  execution  of  the  powers  given 
him  by  the  collector,  and  assented  to  by  the  plaintiff.  Again  it  has 
been  urged  that  a  man  cannot  be  permitted  to  avail  himself  of  his 
own  wrong;  this  is  a  correct  general  principle;  but  if  he  have  vio- 
lated his  neighbor's  property  or  blasted  his  reputation,  he  surely 
may  defend  himself  against  that  kind  of  action  which  the  law  does 
not  permit  to  be  sustained  for  redress  of  the  particular  injuries 
complained  of. 

The  jury  having  negatived  the  promise  alleged,  and  the  facts  as  re- 
ported, affording  no  ground  on  which  the  law  will  imply  a  prom- 
ise, we  will  merely  add  that  the  defendant  cannot  be  adjudged  an- 
swerable in  this  action.  We  have  given  an  answer  to  each  of  the 
arguments  which  have  been  urged  by  the  plaintiff's  counsel,  though 
we  might  have  omitted  it ;  because  some  of  them  could  have  no 
bearing  upon  the  facts  before  us;  for  it  must  be  distinctly  remem- 
bered, that  the  defendant  was  never  the  agent  on  the  part  of  the 
United  States  to  make  a  contract  with  any  one ;  but  was  merely 
constituted,  by  consent  of  the  plaintiffs,  an  agent  for  the  purpose 


FAMILY    RELATION.  6l 

of   superintending^   the   execution    of   a    contract,    which   had    been 
previously  made  between  them  and  Mr.  Collector  Ilsley. 

We  are  all  of  opinion  that  there  must  be  judgment  on  the  verdict. 


ii.     Family  Relation. 

DISBROW  V.  DURAND. 

54  N.  J.  L.  343.— 1892. 

The  plaintiff  below,  who  is  also  the  plaintiff  in  error,  sued  the 
administrator  of  her  deceased  brother's  estate  for  the  value  of  her 
services  as  that  brother's  housekeeper  for  the  six  years  which  im- 
mediately preceded  the  brother's  death ;  that  is,  for  the  value  of  her 
services  from  January  i,  1883,  to  January  i,  1889.  It  was  proved, 
on  her  behalf,  at  the  trial  in  the  circuit  court,  that  the  decedent  re- 
sided upon  and  cultivated  a  small  farm  near  Rahway,  in  Union 
county;  that  prior  to  1864  his  mother  lived  with  him,  and  that  dur- 
ing his  mother's  life  his  sister,  the  plaintiff,  then  a  widow,  came  to 
reside  with  him,  bringing  with  her  her  son.  During  the  year  1864 
the  son,  having  become  a  man,  went  away  and  married.  The  mother, 
sister  and  brother  continued  to  live  together  as  one  family  until 
the  mother  died,  and  thereafter  the  brother  and  sister  continued 
to  live  tog-ether  for  more  than  twenty  years,  until  the  brother  died 
in  January,  1889.  The  brother  cultivated  the  farm,  and  the  sister 
kept  the  house.  The  sister  had  no  means  of  subsistence  except 
through  work  for  strangers,  or  by  continuing  her  home  with  her 
brother,  or  making  it  with  her  son.  The  son  offered  to  take  her, 
but  he  admits  that  he  did  not  insist  strenuously  upon  her  coming 
to  him.  It  was  plainly  apparent  in  the  proofs  that  she  preferred  to 
remain  with  her  brother.  No  proof  was  offered  to  show  either  an 
express  or  implied  contract,  upon  the  part  of  her  brother,  to  re- 
munerate her  for  her  services  in  his  household,  or  that  the  subject 
of  compensation  for  such  services  was  ever  discussed  between  the 
brother  and  sister,  or  contemplated  by  either  of  them.  Upon  this 
case  the  judge  at  the  circuit  directed  that  judgment  of  nonsuit  be 
entered  against  the  plaintiff.  Error  is  now  assigned  upon  excep- 
tion to  that  direction. 

McGiLL,  Ch. — Ordinarily,  where  services  are  rendered  and  volun- 
tarily accepted,  the  law  will  imply  a  promise  upon  the  part  of  the 
recipient  to  pay  for  them ;  but  where  the  services  are  rendered  by 
members  of  a  family,  living  as  one  household,  to  each  other,  there 
will  be  no  such  implication,  from  the  mere  rendition  and  accept- 
ance of  the  services.  In  order  to  recover  for  the  services,  the  plain- 
tiff must  affirmatively  show  either  that  an  express  contract  for  the 
remuneration  existed,  or  that  the  circumstances  under  which  the 


62  BENEFITS    CONFERRED    UPON    REQUEST. 

services  were  rendered  were  such  as  exhibit  a  reasonable  and  proper 
expectation  that  there  would  be  compensation.  The  reason  of  this 
exception  to  the  ordinary  rule  is  that  the  household  family  relation- 
ship is  presumed  to  abound  in  reciprocal  acts  of  kindness  and  good 
will,  which  tend  to  the  mutual  comfort  and  convenience  of  the  mem- 
bers of  the  family,  and  are  gratuitously  performed ;  and,  where  that 
relationship  appears,  the  ordinary  implication  of  a  promise  to  pay 
for  services  does  not  arise,  because  the  presumption  which  supports 
such  implication  is  nullified*  by  the  presumption  that  between  mem- 
bers of  a  household  services  are  gratuitously  rendered.  The  proof 
of  the  services,  and,  as  well,  of  the  family  relation,  leaves  the  case 
in  equipoise,  from  which  the  plaintiff  must  remove  it  or  fail.^  The 
great  majority  of  cases  in  which  this  exception  to  the  ordinary  rule 
has  been  given  effect  have  been  between  children  and  their  parents, 
or  the  representatives  of  the  parents'  estate ;  and  that  fact  appears 
to  have  led  the  courts  of  some  of  our  sister  states  to  speak  of  it  as 
restricted  to  cases  where  such  a  relationship  in  blood  existed ;  but 
it  is  not  perceived  how,  within  the  reason  for  the  exception,  it  is 
to  be  limited  by  mere  propinquity  of  kindred.  It  rests  upon  the 
idea  of  the  mutual  dependence  of  those  who  are  members  of  one  im- 
mediate family,  and  such  a  family  may  exist,  though  composed  of 
remote  relations,  and  even  of  persons  between  whom  there  is  no  tie 
of  blood. 

To  this  time,  in  this  state,  the  cases  which  have  treated  of  this 
subject  have  dealt  only  with  the  relation  of  parent  and  child,  or  the 
case  where  one  party  stands  in  loco  parentis,  (Ridgway  v.  English, 
22  N.  J.  Law  409;  Updike  v.  Titus,  13  N.  J.  Eq.  151;  Smith  v. 
Smith's  Adm'rs,  28  N.  J.  Law  208;  Coley  v.  Coley,  14  N.  J.  Eq. 
350;  Updike  V.  Ten  Broeck,  32  N.  J.  Law  105 ;  Horner  v.  Webster, 
33  N.  J.  Law  387,  411 ;  Prickett  v.  Prickett,  20  N.  J.  Eq.  478;  Gard- 
ner V.  Schooley,  25  N.  J.  Eq.  150;  Miller  v.  Sauerbier,  30  N.  J.  Eq. 
71  ;  Smith  v.  Smith's  Adm'r,  Id.  564;  De  Camp  v.  Wilson,  31  N.  J. 
Eq.  656;  Kendall  v.  Kendall,  36  N.  J.  Eq.  91,  99;  Stone  v.  Todd,  49 
N.  J.  Law  280,  8  Atl.  Rep.  300;)  but  they  have  not  limited  the  ex- 
ception to  that  relation.  On  the  contrary,  in  Updike  v.  Titus,  supra, 
Chancellor  Green  expressed  the  opinion  that  it  contemplates  "chil- 
dren, parents,  grandparents,  brothers,  stepchildren,-  and  other  re- 
lations." And  in  this  court  in  Horner  v.  Webster,  supra,  Mr.  Jus- 
tice Depue  approvingly  referred  to  the  exception  as  applicable  to 
all  cases  where  the  parties  stand  "in  relation  to  each  other  of  sup- 
port on  one  side  and  services  on  the  other."  Without  this  state, 
also,  I  find  most  reliable  authority  extending  the  exception  beyond 
parent  and  child,  where  close  family  relationship  has  been  shown 
to  exist.  For  instance,  it  was  given  effect  in  Robinson  v.  Cush- 
man,  2  Denio  152;  Scully  v.  Scully,  28  Iowa  548;  Keegan  v.  Ma- 

*  Fiirfhf-r  as  to  burden  of  proof  sec  Saunders  v.  Saunders,  90  Me.  284  (1897), 
and  Ulricli  v.  Ulricli.  1.36  N.  Y.  120  (1892). 

'Accord,  Kircligassncr  v.  Rodick,  170  Mass.  543  (1898). 


FAMILY    RELATION.  63 

lone,  62  Iowa  208,  17  N.  W.  Rep.  461  ;  and  Hall  v.  Finch,  29  Wis. 
278, — in  each  of  which  cases  the  relation  was  brother  and  sister ; 
and  in  Bundy  v.  Hyde,  50  N.  H.  116,  where  the  relation  was 
brother-in-law  and  sister-in-law.  In  the  two  Iowa  cases  cited  the 
exception  was  stated  in  this  language :  "Where  it  is  shown  that  the 
person  rendering  the  services  is  a  member  of  the  family  of  the  per- 
son served,  and  receiving  support  therein,  either  as  a  child  or  rela- 
tive, or  a  visitor,  a  presumption  of  law  arises  that  such  services  were 
gratuitous,  and,  in  such  case,  before  the  person  rendering  the  serv- 
ice can  recover,  the  express  promises  of  the  party  served  must  be 
shown,  or  such  facts  and  circumstances  as  will  authorize  the  jury 
to  find  that  the  services  were  rendered  in  the  expectation  by  one 
receiving  and  by  the  other  making  compensation  therefor."  I  have 
not  pretended  to  examine  the  many  cases  upon  this  subject  in  the 
several  states.  That  would  be  a  tedious,  exhaustive,  and,  indeed, 
profitless  task.  The  exception  stands  upon  a  reason  which  logically 
and  properly  must  extend  it  to  all  members  of  a  household,  how- 
ever remote  their  relationship  may  be,  and,  indeed,  even  to  those 
who,  though  not  of  kin,  stand  in  the  situation  of  kindred  in  one 
household.  The  proofs  ofifered  at  the  trial  in  the  present  case  ex- 
hibited the  existence  of  a  family  relationship  for  a  quarter  of  a 
century,  from  which  the  brother  and  sister  each  derived  substantial 
benefit  in  the  services  of  the  other,  and  that  the  services  rendered 
by  each  were  natural  and  appropriate  acts  in  their  respective  spheres, 
looking  to  the  maintenance  of  the  common  home.  It  did  not  appear 
that  in  that  long  period  of  time  either  of  them  entertained  the 
thought  of  demanding  or  having  compensation  from  the  other.  It 
is  deemed  that  the  case  is  well  within  the  exception  to  the  ordinary 
rule  which  has  been  pointed  out.  There  was  no  error  in  granting 
the  nonsuit. 

The  judgment  will  be  affirmed.^ 


BROWN  V.  TUTTLE. 

80  Me.  162.— 1888. 

LiBBEY,  J. — This  action  is  brought  to  recover  for  the  plaintiff's 
labor  for  the  defendant,  and  money  loaned  to  him  at  various  times 
between  the  first  of  January,  1871,  and  May,  1884.  The  case  comes 
here  on  the  testimony  of  the  plaintiff  alone,  from  which  it  appears 
that  in  January,  1871,  she  and  the  defendant,  by  mutual  agreement, 
commenced  living  together  as  husband  and  wife,  wnthout  being  law- 
fully married,  and  continued  to  live  in  that  relation  till  ]\Iay,  1884, 
when  the  defendant  left  her  and  married  another  woman.     During 


*See  also,  Collyer  v.  Collyer,  113  N.  Y.  442 


(1889). 


^^4' 


BENEFITS    CONFERRED    UPON    REQUEST. 


all  the  time  they  lived  together  they  held  themselves  out  to  their 
relatives,  friends  and  the  public,  as  husband  and  wife.  As  the  fruit 
of  their  unlawful  union  they  had  a  son  born  to  them  in  the  early 
part  of  1872.  All  the  services  rendered  by  the  plaintiff  were  ren- 
dered in  keeping  house  as  the  defendant's  wife,  and  not  as  his 
servant.  Nothing  was  said  about  pay.  No  pay  was  expected  by 
the  plaintiff.  She  says,  "we  agreed  to  keep  house  as  man  and  wife  ;" 
"as  man  and  wife  that  were  lawfully  married."  They  both  labored, 
and  their  earnings  were  used  to  pay  their  family  expenses.  She 
says,  "the  money  that  I  turned  in  was  used  to  pay  bills.  The  money 
that  he  earned  was  turned  in ;  when  I  wanted  a  dollar  I  had  it.  He 
always  had  the  money.  If  I  wanted  it  I  always  asked  him  for  it." 
Question.  "You  did  not  consider  this  money  loaned?"  Anszuer. 
"No,  sir;  it  was  turned  in  just  as  if  I  had  been  his  wife."  Question. 
"At  that  time,  did  you  have  any  expectation  of  receiving  any 
money?"  Anszi'er.  "Nothing  only  this  way:  I  expected  to  spend 
my  days  with  him,  no  other  way." 

The  only  contention  is  whether  upon  these  facts  the  law  will  im- 
ply a  promise  to  pay  for  the  labor  performed  by  the  plaintiff,  or 
for  the  money  she  earned  and  delivered  to  the  defendant  for  the 
purposes  stated  by  her.  The  parties  were  living  together  in  viola- 
tion of  the  principles  of  morality  and  chastity  as  well  as  of  the  posi- 
tive law  of  the  state ;  a  relation  to  which  the  court  can  lend  no 
sanction.  The  services  rendered,  as  well  as  the  money  furnished, 
were  in  furtherance,  and  for  the  continuance  of  that  unlawful  re- 
lation. The  law  will  imply  no  promise  to  pay  for  either.  If  there 
had  been  an  express  promise  for  such  a  purpose,  the  court  would 
not  enforce  it.  White  v.  Buss,  3  Cush.  448 ;  Gilmore  v.  Woodcock, 
69  Maine  118.  But  the  evidence  repels  any  idea  of  a  promise,  either 
express  or  implied. 

Plaintiff  nonsuit. 


LAFONTAIN  v.  HAYHURST. 

89  Me.  388.— 1896. 

This  was  an  action  of  assumpsit  on  an  account  annexed  for  board 
of  defendant  and  family,  washing,  mending,  clothing,  and  labor 
for  five  years,  amounting  to  $1,000.  The  plaintiff  testified  that,  for 
a  period  of  about  four  months,  the  defendant  and  his  four  children 
lived  at  her  house,  during  which  time  she  entirely  carried  on  the 
house,  furnished  the  table,  etc.,  and  that  after  said  period,  on  various 
occasions,  he  stayed  at  her  house  through  a  period  of  several  years, 
from  Saturday  until  Monday,  and  upon  holidays;  that  she  fur- 
nished more  or  less  clothing  for  the  defendant  and  his  family,  did 
their  washing,  and  rendered  other  services ;  that  she  also  let  him 
have  various  sums  of  money.     The  action  was  to  recover  for  this 


FAMILY    RELATION.  65 

board,  and  for  these  services,  and  for  clothinj^  and  other  things 
furnished.  She  testified  that,  durinj^  all  of  this  time,  she  and  de- 
fendant were  eng-ag-ed  to  be  married,  and  it  was  admitted  that  on 
the  24th  day  of  "December,  1895,  the  defendant  did  marry  another 
woman. 

Emery,  J. — No  binding;-  promise  to  make  compensation  can  be 
implied  or  inferred  in  favor  of  one  party  ag-ainst  another,  unless 
the  one  party,  the  party  furnishing-  the  consideration,  then  expected, 
and  from  the  lang-uage  or  conduct  of  the  other  party  under  the  cir- 
cumstances had  reason  to  expect,  such  compensation  from  the  other 
party. 

In  this  case  the  plaintiff  alleged  a  promise  to  make  her  compen- 
sation in  money  for  the  various  services  she  rendered  to  the  de- 
fendant. She  testified,  however,  that  she  did  not,  at  the  time,  ex- 
pect any  compensation  in  money  or  money's  worth, — that  she  was 
eng-ag-ed  to  be  married  to  the  defendant,  and  rendered  the  various 
services  to  him  solely  in  consequence  of  that  relation,  and  of  that 
expectation  of  marriag-e.  The  defendant  afterward  married  an- 
other woman,  and  the  plaintiff  now  claims  that  the  defendant,  hav- 
ing- repudiated  the  promise  of  marriage,  must  now  be  held  to  have 
promised  a  monev  compensation  for  her  services.  She  cites  the  case 
of  Cook  V.  Bates^  88  lie.  455,  34  Atl.  266. 

In  Cook  V.  Bates,  the  plaintiff  furnished  board  to  the  defendant 
without  expecting  money  payment,  but  with  the  expectation  that  it 
would  offset  the  labor  furnished  by  the  defendant  to  her  for  the 
same  time.  The  defendant  sued  for  his  labor,  and  obtained  judg- 
ment by  default  through  some  mistake.  Thereupon  the  plaintiff 
sued  for  the  board,  and  it  was  held  that  a  promise  to  pay  for  the 
board  could  be  inferred.  The  plaintiff  expected  compensation,  not 
in  money,  but  in  money's  worth,  in  the  defendant's  labor.  The 
defendant,  in  suing  for  his  labor,  indicated  an  intention  to  pay  for 
the  board  in  money,  and  the  plaintiff  accepted  this  election.  The 
defendant  could  not  then  be  heard  to  say  that  his  labor  was  to  pay 
for  the  board. 

Marriage,  or  a  promsie  of  marriage,  may  be  a  good  considera- 
tion for  a  conveyance  or  a  contract,  when  it  appears  that  the  con- 
veyance or  contract  was  made  in  consideration  of  the  marriage  or 
promise  of  marriage.  In  the  case  at  bar,  however,  the  plaintiff's 
services  were  not  rendered  as  a  consideration  for  the  defendant's 
promise  of  marriage.  That  promise  had  been  made  before  the 
rendering  of  the  services,  and  upon  another  and  different  considera- 
tion,— the  promise  of  the  plaintiff  to  marry  the  defendant. 

The  only  contract  between  them  was  the  mutual  promise  to  marry. 
If  the  defendant  has  broken  that  contract,  her  remedv  is  by  an  ac- 
tion upon  that  contract  for  that  breach.  The  services  sued  for  here 
were  no  part  of  that  contract,  but  merely  incidents  or  consequences 
of  it.  The  plaintiff  expected  no  pay  for  them.  Her  expectation  was 
Woodruff's  Cases — 5 


66  BENEFITS   CONFERRED   UPON    REQUEST. 

confined  to  the  promised  marriage.    With  that  she  would  have  been 
satisfied.    With  damages  for  its  loss  she  must  be  satisfied. 

Exceptions  overruled. 


OSIER  V.  HOBBS. 
33  Ark.  215.— 1878. 

Eakin,  J. — This  action  was  brought  before  a  justice  of  the  peace, 
to  recover  compensation  for  care  and  attention  bestowed  by  the  wife 
of  appellee  Hobbs,  upon  the  child  of  appellant.  It  was  taken  by  ap- 
peal to  circuit  court,  and  submitted  to  the  judge  sitting  as  a  jury. 

The  efifect  of  the  evidence,  as  presented  in  the  bill  of  exceptions, 
is :  that  the  child,  which  was  feeble  and  sickly  and  very  young,  was 
given  by  appellant  Osier's  wife  to  Mrs.  Hobbs,  to  be  raised.  It 
seems  the  mother  was  then  in  a  dying  condition.  Mrs.  Hobbs  took 
the  child  and  kept  it  some  two  years  or  more,  rendering  it  fair 
motherly  attention.  During  this  period  appellant  did  many  acts  of 
neighborly  kindness  to  Hobb's  family,  sending  them  provisions, 
furnishing  teams,  etc.  It  affirmatively  appears  that  neither  party 
intended  to  charge  for  services  to  the  child  on  one  hand,  or  for  ar- 
ticles or  labor  furnished  on  the  other.  Osier,  having  learned  that 
the  child  had  been  corrected  by  the  son-in-law  of  Mrs.  Hobbs,  took 
it  away.  She  was  much  mortified  by  this,  and  Osier  afterward  told 
her  that  he  had  only  taken  it  temporarily,  and  meant  to  return  it 
after  her  son-in-law  left.  She  made  some  answer  which  induced 
him  to  believe  that  she  did  not  desire  or  urge  it,  and  he  never  did. 
It  seems  further  that  Mrs.  Hobbs  had  bought  a  sewing  machine  in 
the  expectation  that  Osier  would  pay  for  it.  When  the  note  became 
due  he  refused  to  do  so.  This,  with  other  reasons,  induced  Hobbs  to 
sue  for  the  past  services  of  his  wife  with  regard  to  the  child. 

The  court  refused,  at  the  request  of  the  appellant,  to  declare  the 
law  to  be : 

"First — If  the  plaintiff  and  wife,  at  the  time  the  child  was  taken 
to  their  house  to  be  raised,  and  during  its  continuance  there,  did 
not  intend  to  charge  for  board  and  attention  rendered  it,  he  has  no 
cause  of  action  in  the  case. 

"Second — If  it  was  understood  by  and  between  plaintiff  and  his 
wife,  and  the  defendant,  during  the  time  the  child  was  at  their  house, 
that  no  charge  was  to  be  made  against  the  defendant  for  board  and 
attention  to  the  child,  the  plaintiff  cannot,  afterwards,  claim  com- 
pensation and  maintain  this  action." 

The  court,  instead,  marlc  the  following  declaration : 

"Upon  the  evidence  in  this  case,  the  defendant  is  liable  to  the 
plaintiff  for  a  reasonable  compensation  for  the  care  of  the  infant  of 
said  defendant,  less  the  value  of  the  contributions  made  by  the  de- 
fendant ;"  and  upon  that  found  for  the  plaintiff  the  sum  of  $50.   The 


FAMILY    RELATION. 

court  based  this  findinpc  and  conclusion  on  the  j^round  that  defend- 
ant permitted  the  wife  of  plaintiff  to  receive  his  child,  an  infant, 
from  his  (defendant's)  wife  on  her  death  bed,  under  the  belief  that 
the  plaintiff's  wife  was  to  have  the  child,  and  raise  and  care  for  it 
as  her  own,  and  permitted  her  to  have  the  care  and  charge  thereof 
for  two  years  and  six  months ;  that  he  made  sundry  advancements 
or  contributions  of  provisions,  medicines  and  clothing-,  amounting 
to  $175,  toward  the  support  of  the  child,  neither  party  intending 
to  charge  the  other  for  these  favors,  and  that  defendant  afterward 
took  the  child  away,  pretending  that  the  child  was  mistreated,  and 
that  against  the  assent  of  plaintiff. 

The  general  principle  is  well  announced  in  the  instructions  asked  ; 
that,  services  intended  at  the  time  to  be  gratuitous,  cannot,  after- 
ward, be  used  to  raise  an  implied  contract  to  pay  for  them ;  and  this 
was  the  case  made  by  the  paper  filed  before  the  magistrate.  It  was 
a  simple  account  against  William  J.  Osier,  in  favor  of  Isaac  Hobbs, 
for  "board,  attention  and  care"  of  the  child,  at  the  request  of  the  de- 
fendant, from  June  16,  1872,  to  August  i,  1874,  $300.  According 
to  the  findings  of  the  court  in  this  action,  the  declarations  of  law 
asked  by  defendants  should  have  been  given,  and  the  judgment 
should  have  been  in  his  favor. 

There  is  nothing  in  the  whole  case  to  indicate  that  plaintiff  in- 
tended or  desired  to  proceed  against  the  defendant  on  the  ground  of 
his  wrongful  conduct  in  taking  away  the  child,  in  violation  of  his 
supposed  implied  contract  (which  was  found  by  the  court  to  be  a 
fact)  to  allow  plaintiff's  wife  to  keep  and  raise  the  child  as  her 
own ;  nor  is  there  any  proof  of  damages  incurred  by  plaintiff  or  his 
wife,  on  account  of  the  tortious  conduct  of  defendant,  resulting 
from  loss  of  future  services.  We  do  not  mean  to  say  that  the  in- 
jury to  the  feelings  of  the  wife,  in  depriving  her  of  the  society  of 
the  child,  to  which  she  may  have  become  very  much  attached,  and 
her  mortification  on  account  of  the  unjust  censure  of  her  conduct, 
implied  by  defendant's  pretenses,  might  not  have  been  estimated 
in  the  assessment  of  damages  by  a  jury  or  a  court  sitting  as  such,  in 
an  action  properly  framed  for  the  purpose.  We  merely  mean,  that 
in  this  action  and  on  the  proof  there  is  error  in  the  judgment. 

Let  the  judgment  be  reversed,  and  the  cause  remanded  for  a  new 
trial. 


FULLER  V.  MOWRY. 

18  R.  I.  424.— 1893. 

Matteson,  C.  J. — This  is  assumpsit  to  recover  for  the  services  of 
the  plaintiff  in  the  care  of,  nursing,  and  attendance  on,  Mrs.  Emily 
M.  Hill,  deceased,  on  whose  estate  the  defendant  is  administrator 
de  bonis  non,  with  the  will  annexed.    The  trial  below  resulted  in  a 


68  BENEFITS    CONFERRED    UPON    REQUEST. 

verdict  for  the  plaintiff.  The  defendant  now  petitions  for  a  new  trial 
on  the  grounds  that  the  verdict  is  against  the  evidence  and  that  the 
court  erred  in  its  rulings. 

The  testimony  shows  that  the  deceased,  who  was  of  unsound  mind, 
was  taken  by  her  guardian,  in  the  latter  part  of  1883,  from  the 
insane  hospital  in  Worcester,  Massachusetts,  to  the  rooms  occupied 
by  her  sister,  the  plaintiff,  in  that  city;  that  from  that  time  to  her 
death  in  May,  1890,  Mrs.  Hill  continued  to  reside  with  the  plaintiff, 
and  that,  during  the  whole  of  this  period  her  condition,  both  phys- 
ical and  mental,  required  the  constant  care  and  attendance  of  the 
plaintiff;  that  the  income  of  the  property  owned  by  Mrs.  Hill  was 
applied  by  her  guardians  to  the  support  of  the  ward  and  of  the 
plaintiff  during  the  period  that  the  ward  resided  with  the  plaintiff. 
The  brother  of  Mrs.  Hill,  who  was  her  guardian  at  the  time  of  her 
removal  from  the  hospital  to  the  plaintiff's  apartments,  died  in  1887. 
By  reason  of  his  death  the  plaintiff,  by  Pub.  Stat.  R.  I  ,  cap.  214, 
§'  33,  in  force  at  the  time  of  the  trial  below,  was  disqualified  from 
testifying  as  a  witness  on  her  own  offer  as  to  the  contract  or  under- 
standing between  herself  and  the  guardian,  and  she  was  not  called 
as  a  witness  for  that  purpose  by  the  defendant.  What  were  the 
terms  of  such  contract  or  understanding,  if  any  there  was',  therefore, 
does  not  appear. 

The  defendant  requested  the  court  to  instruct  the  jury  that  unless 
they  found  an  express  promise  by  the  deceased,  or  by  either  of 
her  guardians  in  her  lifetime,  the  plaintiff  could  not  recover.  The 
court  denied  the  request  and  the  defendant  excepted.  This  excep- 
tion and  the  ground  that  the  verdict  is  against  the  evidence  are  so 
closely  related  that  they  may  conveniently  be  considered  together. 

As  Mrs.  Hill  was  of  unsound  mind,  she  was,  of  course,  incom- 
petent to  make  an  express  promise ;  and  an  express  promise  by  her 
guardian  would  not  have  been  binding  on  her,  or  her  estate,  but 
only  on  the  guardian  himself  personally.  Schouler,  Domestic  Re- 
lations, §  344.  The  suit  is  against  the  administrator  of  the  ward 
and  is  based,  not  on  an  express  contract,  but  on  a  contract  implied 
by  law  for  necessaries  furnished  to  the  ward.  The  defendant  argues 
that  though  the  law  implies  a  promise  to  pay  for  services  rendered 
and  voluntarily  accepted,  yet  when  the  services  are  rendered  by 
members  of  a  family  living  together  in  one  household  to  each  other, 
no  such  implication  arises  for  the  reason  that  where  the  household 
family  relation  exists,  reciprocal  acts  of  kindness  which  tend  to 
promote  the  comfort  and  convenience  of  the  members  of  the  house- 
hold are  presumed  to  have  been  rendered  disinterestedly,  from  mere 
affection  or  good  will ;  and,  hence,  that  a  plaintiff  who  sues  for 
such  services,  to  recover,  must  show  affirmatively  an  express  promise 
of  remuneration.  Doubtless  this  argument  is  sound,  so  far  as  it 
goes,  but  the  principle  contended  for  is  subject  to  the  further  quali- 
fication that  if  the  circumstances  in  which  the  services  are  rendered 
are  such  as  to  show  a  reasonable  and  proper  exj^ectation  that  com- 
pensation is  to  be  made,  the  plaintiff  will  be  entitled  to  recover. 


REWARDS. 

Dlsbrow  V.  Durand,  54  N,  J.  L.  343;  Carpenter  v.  Weller,  15  Hun 
134;  Bundy  v.  Hyde,  50  N.  H.  116;  Guild  v.  Guild,  15  Pick.  129; 
Keener  on  Quasi-Contracts,  315-341. 

The  testimony  shows,  as  already  stated,  that  Mrs.  Hill's  condition 
required  the  constant  care  and  attendance  of  the  plaintiff,  and  that 
the  latter,  in  consequence,  gave  up  her  previous  occupation  in  order 
to  render  to  her  sister  the  care  and  attendance  which  were  necessary. 
While  it  is  doubtful  if  the  plaintiff,  unless  prompted  by  her  sisterly 
affection,  would  have  been  willing-  to  give  up  her  prior  occupation 
and  take  on  herself  the  burden  of  caring  for,  nursing  and  attending 
the  deceased,  suffering  as  the  latter  was  from  the  infirmities  of  mind 
and  body  with  which  she  was  afflicted,  and  wdiich  rendered  her  in- 
capable of  reciprocating  or  perhaps  appreciating  the  acts  of  kind- 
ness bestowed  upon  her,  we  think  that  the  jury  were  fully  warranted 
in  finding  on  the  testimony  a  reasonable  and  proper  expectation  on 
the  part  of  the  plaintiff  that  she  was  to  be  compensated  for  her  serv- 
ices beyond  the  mere  support  which  she  received  from  the  income 
of  her  sister's  estate.  The  only  fact  appearing  which  can  be  urged 
as  inconsistent  with  such  expectation  is  that  the  plaintiff  made  no 
claim  for  compensation  during  the  lifetime  of  her  sister.  \yhy  she 
made  no  claim  does  not  appear,  but  it  is  to  be  borne  in  mind  in  this 
connection  that  if  the  fact  was  susceptible  of  explanation,  the  plain- 
tiff was  precluded  by  the  statute  from  making  it.  It  may  be  con- 
jectured that  the  income  of  the  estate  of  Mrs.  Hill  was  barely  suf- 
ficient for  the  comfortable  support  of  the  household,  and  that  the 
plaintiff  was,  therefore,  willing  to  forego,  while  her  sister  was  liv- 
ing, payment  of  compensation  which  could  only  be  made  out  of  the 
principal  of  the  estate,  and  which  would  thereby  lessen  the  income 
needed  for  their  support.  But  whether  this  be  so  or  not,  the  testi- 
mony shows  that  immediately  on  the  death  of  Mrs.  Hill,  and  before 
the  existence  of  a  will  was  known,  the  plaintiff  made  her  claim  for 
compensation.  This  prompt  presentation  of  her  claim  on  the  death 
of  her  sister  tends  to  negative  the  idea  that  her  claim  was  an  after- 
thought and  to  support  the  view  that  she  expected  to  receive  com- 
pensation. 

We  think  that  the  instruction  was  properly  denied  and  that  the 
verdict  was  not  against  the  evidence.  *     *     *     * 

Defendant's  petition  for  a  new  trial  denied  and  dismissed  with 
costs. 


iii.     Rczvards. 

DAWKINS  V.  SAPPINGTON. 

26  Ind.  199. — 1866. 

Frazer,  J. — The  appellant  was  the  plaintiff  below.  The  com- 
plaint was  in  two  paragraphs,  i.  That  a  horse  of  the  defendant 
had  been   stolen,   whereupon   he   published   a   handbill,   offering   a 


70  BENEFITS    CONFERRED    UPON    REQUEST. 

reward,  of  $50  for  the  recovery  of  the  stolen  property,  and  that 
thereupon  the  plaintiff  rescued  the  horse  from  the  thief  and  re- 
stored him  to  the  defendant,  who  refused  to  pay  the  reward.  2. 
That  the  horse  of  the  defendant  was  stolen,  whereupon  the  plain- 
tiff recovered  and  returned  him  to  the  defendant,  who,  in  con- 
sideration thereof,  promised  to  pay  $50  to  the  plaintiff,  which  he 
has  failed  and  refused  to  do. 

To  the  second  paragraph  a  demurrer  was  sustained.  To  the 
first  an  answer  was  filed,  the  second  paragraph  of  which  alleged 
that  the  plaintiff,  when  he  rescued  the  horse  and  returned  him  to 
the  defendant,  had  no  knowledge  of  the  offering  of  the  reward. 
The  third  paragraph  averred  that  the  handbill  offering  the  reward 
was  not  published  until  after  the  rescue  of  the  horse  and  his 
delivery  to  the  defendant.  The  plaintiff  unsuccessfully  demurred 
to  each  of  these  paragraphs,  and  refusing  to  reply  the  defendant 
had  judgment. 

1.  Was  the  second  paragraph  of  the  complaint  sufficient?  The 
consideration  alleged  to  support  the  promise  was  a  voluntary 
service  rendered  for  the  defendant  without  request,  and  it  is  not 
shown  to  have  been  of  any  value.  A  request  should  have  been 
alleged.  This  was  necessary  at  common  law,  even  in  a  common 
count  for  work  and  labor  (Chitty's  PI.  338),  though  it  was  not 
always  necessary  to  prove  an  express  request,  as  it  would  some- 
times be  implied  from  the  circumstances  exhibited  by  the  evidence. 

2.  It  is  entirely  unnecessary,  as  to  the  third  paragraph  of  the 
answer,  to  say  more  than  that,  though  it  was  highly  improbable 
in  fact,  it  was  sufficient  in  law. 

3.  The  second  paragraph  of  the  answer  shows  a  performance 
of  the  service  without  the  knowledge  that  the  reward  had  been 
offered.  The  offer,  therefore,  did  not  induce  the  plaintiff  to  act. 
The  liability  to  pay  a  reward  offered  seems  to  rest,  in  some  cases, 
upon  an  anomalous  doctrine,  constituting  an  exception  to  the  gen- 
eral rule.  In  Williams  v.  Carwardine,  4  Barn.  &  Adolph.  621,  there 
was  a  special  finding,  with  a  general  verdict  for  the  plaintiff,  that 
the  information  for  which  the  reward  was  offered  was  not  induced 
to  be  given  by  the  offer,  yet  it  was  held  by  all  the  judges  of  the 
King's  Bench  then  present,  Denman,  C.  J.,  and  Littledale,  Parke, 
and  Patteson,  JJ.,  that  the  plaintiff  was  entitled  to  judgment.  It 
was  put  upon  the  ground  that  the  offer  was  a  general  promise  to 
any  person  who  would  give  the  information  sought;  that  the  plain- 
tiff", having  given  the  information,  was  within  the  terms  of  the 
offer,  and  that  the  court  could  not  go  into  the  plaintiff's  motives. 
This  decision  has  not,  we  believe,  been  seriously  questioned,  and 
its  reasoning  is  conclusive  against  the  sufficiency  of  the  defense 
under  examination.  There  arc  some  considerations  of  morality 
and  public  policy  which  strongly  tend  to  support  the  judgment  in 
the  case  cited.  If  the  offer  was  made  in  good  faith,  why  should 
the  dcfenrlant  in(jniro  whether  the  plaintiff  knew  that  it  had  been 
made?     Would  the  benefit  to  him  be  diminished  by  the  discovery 


BENEFITS    CONFERRED    UNDER    CONTRACT.  7I 

that  the  plaintiff,  instead  of  acting  from  mercenary  motives,  had 
been  impelled  solely  by  a  desire  to  prevent  the  larceny  from  being 
profitable  to  the  person  who  had  committed  it?  Is  it  not  well  that 
any  one  who  has  an  opportunity  to  prevent  the  success  of  a  crime, 
may  know  that  by  doing  so  he  not  only  performs  a  virtuous  service, 
but  also  entitles  himself  to  whatever  reward  has  been  offered  there- 
for to  the  public? 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded, 
with  directions  to  the  court  below  to  sustain  the  demurrer  to  the 
second  paragraph  of  the  answer.^ 


2.  IN  THE  PERFORMANCE  OF,  OR  UNDER  THE  INDUCEMENT  OF,  A  CON- 
TRACTUAL AGREEMENT. 

a.     Capacity  of  Parties. 

i.     Infants^ 

ii.     Insane  Persons. 

WALDRON  V.  DAVIS,  Adm'x. 

70  N.  J.  L.  788. — 1904. 

Vredenburgh,  J. — Under  the  findings  of  fact  and  of  law  of  the 
trial  judge  in  this  cause,  a  jury  having  been  waived,  final  judgment 
was  awarded  the  plaintiff  below  for  the  balance  of  principal  money, 
with  interest,  as  claimed  by  the  plaintiff  and  specified  in  the  bill  of 
particulars.  The  declaration  was  in  contract,  upon  the  common 
counts,  and  the  account  as  claimed  was  thus  particularized,  viz. : 
"(i)  To  board  and  care  of  said  Eliza  Van  Norden,  deceased,  from 
October  i,  1893,  to  October  i,  1898,  260  weeks,  at  $4.25  per  week, 
$1,105.  (2)  To  board  and  care  of  Eliza  Van  Norden,  deceased, 
from  October  i,  1898,  to  date  of  her  death,  March  13,  1902,  179 
weeks  and  2  days,  at  $5  per  week,  $896.43;  total,  $2,001.43." 
Against  these  charges  were  credits  given  for  payments  made  on 
account  of  $1,426.75.  The  only  plea  filed  was  the  general  issue  in 
assumpsit.     The  plaintiff's  evidence  at  the  trial    (and  there  was 

*  Accord,  Auditor  v.  Ballard,  9  Bush  (Ky.)  572  (1873)  ;  Russell  v.  Stewart, 
44  Vt.  170  (1872)  ;  Eagle  v.  Smith,  4  Houst.  (Del.)  293  (1871).  Contra,  Wil- 
liams V.  West  Chicago  St.  R.  R.,  191  111.  610  (1901),  and  N.  Y.  and  Tenn. 
cases  cited  therein. 

"  See  the  cases  on  the  disaffirmance  of  infants'  contracts  and  the  restora- 
tion of  consideration  therefor,  in  Woodruff's  Cases  on  Domestic  Relations. 


'J2  BENEFITS    CONFERRED    UNDER    CONTRACT. 

none  other  offered)  exhibited  an  express  contract,  made  in  October, 
1893,  between  the  original  parties,  under  which  the  board  and  lodg- 
ing of  the  deceased  were  agreed  upon  at  a  fixed  price.  The  evidence 
showed  that  the  deceased  boarded  with  the  plaintiff  from  October, 
1893,  until  the  summer  of  1898,  making  monthly  payments  on  ac- 
count of  her  board  under  the  contract  proved,  and  then  visited 
her  sister  until  October,  1898,  when  she  returned  to  the  plain- 
tiff's house.  Upon  her  return  a  great  change  both  in  her  body 
and  mind  was  apparent.  The  evidence  clearly  shows,  and  the 
trial  judge  found,  that  the  deceased  had  become  non  compos  mentis. 
While  no  inquisition  was  had,  nor  office  found,  it  is  clear  from 
the  evidence,  and  must  be  conceded,  that  after  October  i,  1898, 
at  least,  the  deceased  became  insane.  To  this  mental  disorder  the 
physical  affliction  of  cancer  was  added ;  and  her  condition,  both 
mentally  and  physically,  necessitated  constant  and  exacting  care 
and  services  toward  her  on  the  part  of  the  plaintiff".  A  short  ex- 
tract from  the  very  full  testimony  on  this  subject  will  show  that 
the  services  rendered  and  the  care  given  to  the  deceased  by  the 
plaintiff,  both  before  and  after  October  i,  1898,  belonged  to  a 
class  which  in  law  are  properly  denominated  "necessaries."  A  wit- 
ness in  the  plaintiff's  household  testified  that  "she  [the  deceased] 
couldn't  be  left  alone.  We  didn't  leave  her  alone  for  a  number 
of  years — for  five  years — and  never  left  her  alone  night  and  day. 

*  *  *  Then  gradually  she  became  worse,  and  soiled  the  rooms, 
the  carpets  in  four  rooms,  and  the  hall,  besides  her  own  room — 
spoiled  them,  ruined  them — and  destroyed  some  of  the  furniture. 

*  *  *  She  became  violent,  and  couldn't  care  for  herself — had 
to  be  attended  to,  dressed,  and  so  forth,  washed  and  cared  for — 
and  she  became  very  noisy  and  troublesome  at  the  table  and  in 
the  house,  so  that  no  other  boarders  could  be  had,  because  of  her 
constant  noises  and  disturbance.  *  *  *  j^  caring  for  her,  if  she 
was  soiled,  and  we  wished  to  remove  her  clothing,  it  would  often 
take  two  to  handle  her,  because  she  would  kick  so.  She  would  fight 
and  scratch  and  pull  hair.  *  *  *  One  had  to  hold  her  feet  while 
the  other  would  get  her  clothes  off." 

The  counsel  of  the  plaintiff  in  error  did  not  contend  upon  the 
motion  for  a  nonsuit  in  the  court  below,  nor  does  he  in  this  court 
insist,  that  the  deceased  after  October  i,  1898,  was  sane,  nor  that 
the  extra  services  performed  were  not  necessary  to  be  done  for  her 
health  and  comfort ;  but  the  insistment  is  that  no  recovery  for  any 
sum  in  excess  of  that  agreed  upon  can  be  had  on  an  implied  contract 
to  pay  for  the  reasonable  worth  of  such  additional  services,  because 
the  express  contract  proved  excludes  an  implied  contract,  or,  to  use 
the  words  of  the  brief,  "an  express  contract  was  in  existence,  cov- 
ering the  entire  subject-matter  of  the  suit."  But  this  contention 
ignores  the  important  change  in  the  contractual  relations  of  the 
parties  which  the  intervention  of  the  insanity  of  one  of  the  contract- 
ing parties  accomplished.  After  that  occurred,  the  express  mutual 
agreement  no  longer  continued  in  force.     The  authorities  are  all 


MARRIED    WOMEN.  73 

in  such  accord  upon  this  head  that  citation  is  uncalled  for.  After 
that  event  deprived  the  parties  not  only  of  their  power  to  keep  in 
force  the  prior  mutual  ai^reement,  but  also  of  their  lei^al  ability  to 
enter  into  any  new  one,  the  law  implied  a  liability  on  the  part  of  the 
lunatic,  which  became  bindin.2:  after  her  death  also  upon  her  estate, 
to  pay,  upon  quantiiui  meruit,  what  such  necessaries  were  reason- 
ably worth.  This  principle,  also,  is  so  well  sustained  by  authority  of 
both  text-books  and  reported  cases  that  I  shall  only  cite  a  few  of  the 
most  pointed,  viz. :  Van  Horn  v.  Hann,  39  N.  J.  Law  207 ;  Hallett 
V.  Oakes,  i  Cush.  297;  Kendall  v.  May,  10  Allen  59;  Richardson  v. 
Strong-,  35  N.  C.  106,  55  Am.  Dec.  430;  Pearl  v.  McDowell,  3  J.  J. 
Marsh.  659,  20  Am.  Dec.  199;  i  Ad.  on  Con.  (2d  Am.  Ed.),  p.  236. 
In  the  case,  supra,  of  Richardson  v.  Strong,  the  action  was  assumpsit 
on  quantum  meruit  for  work  and  labor — being  for  the  services  of  a 
nurse  for  a  madman,  and  of  a  guard  to  protect  him  from  a  propen- 
sity to  destroy  himself — and  the  North  Carolina  Supreme  Court 
held  that  "where  a  person  is  insane,  so  as  to  attempt  injury  to  him- 
self, or  the  destruction  of  his  property,  the  services  of  a  nurse  and 
guard  fall  within  the  class  of  necessaries,  as  defined  by  law."  The 
finding  of  the  trial  judge  as  to  the  value  of  the  services  rendered 
by  the  plaintifif  after  October  i.  1898,  in  the  care  of  the  deceased, 
is  not  here  reviewable ;  nor,  indeed,  has  the  correctness  of  his  finding 
upon  that  subject  been  questioned  by  the  counsel  of  the  plaintiff  in 
error.    *    *    *    * 


ill.     Married  Women. 

SHEARER  V.  JOHN  FOWLER. 
7  Mass.  31. — 1810. 

The  declaration,  which  was  in  case,  contained  four  counts.  The 
last  count,  upon  which  alone  any  question  came  before  the  court, 
was  for  money  had  and  received  by  the  defendant  for  the  plaintiff's 
use.  At  the  trial  of  the  action  before  Sedgwick,  J.,  at  the  last  April 
term  in  this  county,  the  plaintiff  offered  to  prove,  in  support  of  his 
said  count,  that,  in  consideration  of  the  deed  made  by  Abigail  Fowler, 
the  defendant's  wife,  as  the  attorney  of  her  husband,  and  in  her  own 
right  (which  deed  is  described  in  the  case  of  Fowler  v.  Shearer, 
ante,  pag^e  14),  of  certain  premises,  which  the  husband  and  wife 
held  in  her  right ;  he,  the  plaintiff,  paid  to  the  defendant  one  hun- 
dred and  sixty  dollars,  and  gave  his  promissory  note  for  two  hun- 
dred dollars,  to  recover  back  which  money  so  paid  was  the  purpose 
of  this  count.  The  evidence  was  rejected  by  the  judge,  and  for  that 
cause  the  plaintiff  moved  for  a  new  trial,  and  the  action  stood  con- 
tinued upon  that  motion  to  the  present  term. 

Curia. — The  principles  of  law,  applicable  to  this  case,  seem  to 


74':  BENEFITS    CONFERRED    UNDER   CONTRACT. 

be  well  settled.  Whenever  money  is  paid  in  consideration  of  a  con- 
tract, which  contract  is  void,  for  want  of  power  in  one  of  the  par- 
ties, or  for  any  cause  other  than  fraud  or  illegality  in  the  contract, 
natural  justice  dictates  that  the  money  so  paid  shall  be  refunded; 
and  there  is  no  principle  of  law  to  prevent  the  operation  of  so  equita- 
ble a  rule.  Here  the  deed,  for  which  the  money  demanded  in  this 
action  was  part  of  the  consideration,  has  been  adjudged  void  ;^  and 
in  that  action  a  promissory  note,  which  was  another  part  of  the  con- 
sideration of  the  same  deed,  has  been  avoided  as  nudum  pactum,  be- 
cause the  deed  failed.  No  cause  can  be  assigned  why  the  money, 
which  was  actually  paid,  should  remain  in  the  hands  of  the  party, 
who  still  holds  the  property  for  which  this  money  was  paid.  The 
evidence  ought,  therefore,  to  have  been  admitted.  The  verdict  must 
be  set  aside,  and  a  new  trial  granted. 


NATIONAL  GRANITE  BANK  v.  TYNDALE,  administrator. 

Same  v.  Same. 

176  Mass.  547. — 1900. 

Morton,  J. — These  two  cases  were  argued  together.  The  first 
is  an  action  at  law,  and  was  before  this  court  on  the  defendant's  ex- 
ceptions in  173  Mass.  517,  53  N.  E.  1004,  and  it  was  there  held 
that,  the  maker  of  the  notes  being  a  married  woman,  and  the 
notes  being  made  payable  to  the  order  of  her  husband,  and  in- 
dorsed by  him,  no  action  could  be  maintained  on  them  against  her. 
It  comes  before  us  now  on  exceptions  by  the  plaintifif  to  a  ruling  by 
the  presiding  justice  that  upon  the  plaintiff's  offer  of  proof  an  ac- 
tion could  not  be  maintained  against  the  administrator  on  the  com- 
mon counts  for  money  lent,  or  for  money  had  and  received,  and  to 
a  ruling  that  the  plaintiff  was  not  entitled  to  avail  itself  of  the  facts 
set  up  in  the  bill  in  equity  in  answer  to  the  defense  that  the  notes 
were  void  because  made  payable  to  the  husband  of  defendant's  in- 
testate. The  plaintiff  offered  to  show  that  on  December  29,  1891, 
it  lent  the  defendant's  intestate  $15,000,  and  that  at  the  same  time 
the  defendant's  intestate  gave  the  plaintiff  three  promissory  notes 
for  $15,000,  payable  to  the  order  of  her  husband,  and  indorsed  by 
him  and  by  two  other  parties ;  that  subsequently  the  defendant's 
intestate  repudiated  the  notes  on  the  ground  that,  having  been  made 
payable  to  her  husband,  and  indorsed  by  him,  they  were  void  ;  and 
that  the  plaintiff  had  expressly  refused  to  make  the  loan  to  the  other 

'  Tn  Fowler  v.  Shearer,  7  Mass.  14,  19,  because  it  was  the  deed  of  a  married 
woman. 


MARRIED    WOMEX.  75 

parties,  or  on  their  individual  credit,  and  made  the  loan  only  to  de- 
fendant's intestate,  and  on  her  credit. 

We  think  that  the  rulin.q-  was  erroneous.  The  offer  was  to  show 
that  the  loan  was  made  to  defendant's  intestate,  and  on  her  credit. 
This  was  consistent  with  the  form  of  the  note,  of  which  she  was  the 
maker,  and  of  which  the  other  parties  were,  as  between  them  and  the 
bank  the  indorsers.  Lewis  v.  Monahan,  173  Mass.  122,  53  N.  E.  150. 
The  fact  that  the  note  was  declared  void  as  to  her  did  not  destroy  the 
original  transaction,  or  avoid  the  debt  created  by  the  loan  to  her. 
Walker  v.  Mayo,  143  Mass.  42,  8  N.  E.  873 ;  Sutton  v.  Toomer,  7 
Barn.  &  C.  416. 

If  the  other  parties  to  the  note  had  been  co-makers  with  her,  and 
the  loan  had  been  made  to  all  of  them,  and  the  note  had  afterward 
been  avoided  by  one  of  them,  there  would  seem  to  be  no  doubt  that 
the  payee  could  have  maintained  an  action  against  all  of  them  for 
money  had  and  received,  or  money  lent.  Leonard  v.  Society,  2  Cush. 
462.  In  such  a  case,  the  note  having  been  received  on  the  faith 
that  it  was  the  valid  note  of  all,  the  payee  "would  be  warranted  in 
treating  it  as  a  nullity,  and  resorting  to  the  original  contract." 
Leonard  v.  Society,  supra.  A  fortiori,  ought  that  to  be  the  case 
when  the  liability  of  the  other  parties  is,  as  here,  collateral,  and  the 
action  is  brought  against  the  maker  alone.  It  is  true  that  the  plaintiff 
could  have  treated  the  note  as  valid  as  against  the  other  parties,  and 
that,  if  the  plaintiff  had  sued  and  recovered  against  the  last  in- 
dorser,  for  instance,  the  husband  might  have  been  estopped  in  an 
action  against  him  by  a  subsequent  indorser  to  deny  the  validity  of 
the  note.  Roby  v.  Phelan,  118  Mass.  541.  But  this  action  is  not 
against  the  indorsers,  and  the  counts  that  we  are  considering  are 
not  upon  the  note.  The  only  use  of  the  note  which  the  plaintiff 
can  make  in  relying  on  those  counts  is  as  evidence  tending  to  show 
the  terms  on  which  the  loan  was  made  to  defendant's  intestate.  It 
cannot  recover  upon  the  note  and  the  common  counts  both,  and, 
so  far  as  it  relies  upon  the  common  counts,  it  must  be  taken  to  rely 
upon  the  original  contract  with  the  maker  of  the  note,  and  there- 
fore to  have  elected  to  treat  the  note  as  a  nullity.  In  such  a  case 
the  plaintiff  would  have  no  ground  of  recovery  against  parties  whose 
only  liability  as  between  them  and  the  bank  is  that  of  indorsers  on 
the  note. 

The  plaintiff  contends,  however,  that  it  is  entitled  to  be  relieved 
in  equity  against  the  defense  that  the  notes  are  void  because  made 
payable  by  the  defendant's  intestate  to  her  husband.  Its  conten- 
tion is,  in  substance,  that  the  defendant's  intestate,  having  received 
and  kept  the  proceeds  of  the  notes,  is  estopped  in  equity  to  deny 
their  validity.  But  a  party  cannot  be  relieved  in  equity,  we  think, 
by  reason  of  an  estoppel  any  more  than  at  law,  from  the  effect  of  a 
positive  rule  of  law.  It  is  the  rule  of  law  that  controls  the  conduct 
of  parties,  not  the  conduct  of  parties  the  rule  of  law.  To  hold  other- 
wise would  be  to  permit  parties  to  set  aside  at  their  pleasure,  with 
the  aid  of  a  court  of  equity,  the  rule  of  the  common  law  which  has 


76  BENEFITS    CONFERRED    UNDER    CONTRACT. 

been  declared  and  recognized  by  the  legislature  and  by  this  court 
that  contracts  between  husband  and  wife  are  void.  It  is  true  that 
under  some  circumstances — as,  for  instance,  in  the  case  of  trusts 
and  contracts  made  in  contemplation  of  marriage — contracts  be- 
tween husband  and  wife  have  been  enforced  in  equity.  See  Frankel 
V.  Frankel,  173  Mass.  214,  53  N.  E.  398.  But  in  this  common- 
wealth, whatever  may  be  the  rule  elsewhere,  it  never  has  been  held 
that  validity  could  be  given  to  contracts  between  husband  and  wife, 
or  in  the  analogous  case  of  contracts  made  during  minority,  by 
means  of  the  doctrine  of  equitable  estoppel.  See  Fowle  v.  Torrey, 
135  Mass.  87;  Baker  v.  Stone,  136  Mass.  405;  Woodward  v.  Spurr, 
141  Mass.  283,  6  N.  E.  521;  Clark  v.  Patterson,  158  Mass.  388,  33 
N.  E.  589. 

Moreover,  there  is  no  allegation  in  the  bill  of  any  conduct  or 
representation,  fraudulent  or  otherwise,  on  the  part  of  defendant's 
intestate,  whereby  the  plaintiff  was  induced  to  take  the  notes  and 
part  with  its  money  to  her,  and  thus  the  very  foundation  of  an  es- 
toppel, equitable  or  otherwise,  fails.  It  is  consistent  with  the  alle- 
gations in  the  bill  that  the  plaintiff  knew  that  defendant's  intestate 
was  the  wife  of  the  payee,  and  acted  in  regard  to  the  transaction 
on  its  own  knowledge.  It  is  manifest  that  the  fact  that  the  notes 
are  void  does  not  of  itself  entitle  the  plaintiff  to  relief.  Equity  does 
not  undertake  to  afford  relief  in  all  cases  where  contracts  are  for 
any  reason  void  in  the  form  in  which  they  have  been  entered  into. 

The  result  is  that  in  the  action  at  law  we  think  the  exceptions 
should  be  sustained,  and  that  in  the  bill  in  equity  the  decree  sus- 
taining the  demurrer  and  dismissing  the  bill  with  costs  should  be 
affirmed.    So  ordered.^ 


SMOUT  V.  ILBERY. 
10  Mees.  &  W.  (ExcH.)  I.— 1842. 

Debt  for  goods  sold  and  delivered  and  on  an  account  stated. 

Alderson,  B. — This  case  was  argued  at  the  sittings  after  last 
Hilary  term,  before  my  Brothers  Gurney,  Rolfe,  and  myself.  The 
facts  were  shortly  these.  The  defendant  was  the  widow  of  a  Mr. 
Ilbery,  who  died  abroad  ;  and  the  plaintiff,  during  the  husband's 
lifetime,  had  supplied,  and  after  his  death  had  continued  to  supply, 


'  Tn  Kncil  v.  K^xlcston,  140  Mass.  202  (1885),  a  wife  had  lent  money  to  her 
hiishand.  Plaintiff,  the  administratrix  of  the  wife  brought  contract  against  the 
administrator  of  thehnsband  in  two  coimts, — one  for  money  lent  and  one  for 
money  had  and  received.  Recovery  was  denied  on  both  counts;  on  the  first, 
because  of  the  lack  of  capacity  of  the  wife  to  make  a  contract;  on  the  second 
because,  in  the  words  of  the  court,  "the  inference  that  if  one  contract  was  re- 
pudiated another  must  be  inferred  could  not  arise  where  parties  were  not  com- 
petent to  make  any  contract."  See  the  criticism  of  Kneil  v.  Egleston  in 
Keener  on  Quasi-Contracts,  336-340. 


PivIVATE    CORPORATIONS. 

goods  for  the  use  of  the  family  in  England.  The  husband  left  Eng- 
land for  China  in  March,  1839,  and  died  on  the  14th  day  of  October, 
in  that  year.  The  news  of  his  death  first  arrived  in  England  on  the 
13th  day  of  March,  1840;  and  the  only  question  now  remaining  for 
the  decision  of  the  court  is,  whether  the  defendant  was  liable  for 
the  goods  supplied  after  her  husband's  death,  and  before  it  was 
possible  that  the  knowledge  of  that  fact  could  be  communicated  to 
her.  There  was  no  doubt  that  such  knowledge  was  communicated 
to  her  as  soon  as  it  was  possible ;  and  that  the  defendant  had  paid 
into  court  sufficient  to  cover  all  the  goods  supplied  to  the  family  by 
the  plaintiff  subsequently  to  the  13th  of  March,  1840.  *  *  *  * 
No  one  is  liable  upon  the  contract  so  made.  Our  judgment,  on 
the  present  occasion,  is  founded  on  general  principles  applicable  to 
all  agents ;  but  we  think  it  right  also  to  advert  to  the  circumstance, 
that  this  is  the  case  of  a  married  woman,  whose  situation  as  a  con- 
tracting party  is  of  a  peculiar  nature.  A  person  who  contracts  with 
an  ordinary  agent  contracts  with  one  capable  of  contracting  in  his 
own  name ;  but  he  who  contracts  with  a  married  woman  knows  that 
she  is  in  general  incapable  of  making  any  contract  by  which  she  is 
personally  bound.  The  contract,  therefore,  made  with  the  husband 
by  her  instrumentality,  may  be  considered  as  equivalent  to  one  made 
by  the  husband  exclusively  of  the  agent.  Now,  if  a  contract  were 
made  on  the  terms,  that  the  agent,  having  a  determinable  authority, 
bound  his  principal,  but  expressly  stipulated  that  he  should  not  be 
personally  liable  himself,  it  seems  quite  reasonable  that,  in  the  ab- 
sence of  all  mala  fides  on  the  part  of  the  agent,  no  responsibility 
should  rest  upon  him ;  and,  as  it  appears  to  us,  a  married  woman, 
situated  as  the  defendant  was  in  this  case,  may  fairly  be  considered 
as  an  agent  so  stipulating  for  herself ;  and  on  this  limited  ground, 
therefore,  we  think  she  would  not  be  liable  under  such  circum- 
stances as  these.     *     *     *     * 


iv.     Corporations. 

I.      PRIVATE  CORPORATIONS. 

BRUNSWICK  GAS  LIGHT  CO.  v.  UNITED  GAS  CO. 

85  Me.  532.— 1893. 

Walton,  J. — *  *  *  *  jj^  ^j-,g  present  case,  the  Brunswick 
Gas  Light  Company  undertook  to  lease  all  its  property,  and  all  its 
corporate  rights  and  privileges,  to  the  United  Gas,  Fuel  &  Light 
Company  for  twenty-five  years.  The  latter  company  took  posses- 
sion of  the  works,  and  held  them  for  seventeen  and  one-half  months, 
making  improvements  upon  them,  and  paying  a  portion  of  the 
agreed  rent.  It  then  abandoned  the  works,  and  possession  was  re- 
sumed by  the  lessors. 


78  BENEFITS    CONFERRED    UNDER    CONTRACT. 

This  is  a  suit  by  the  lessors  against  the  lessees  for  a  breach  of  the 
covenants  contained  in  the  lease.  It  was  contended  in  defense  that 
the  lease  was  illegal  and  void,  and  that  no  recovery  could  be  had 
upon  it.  The  presiding  justice  ruled,  as  a  matter  of  law,  that  the 
plaintiff  company  and  the  defendant  company  had  power  to  execute 
the  lease,  and  that  a  recovery  could  be  had  for  a  breach  of  the  cove- 
nants contained  in  it.  We  think  the  ruling  was  erroneous.  No 
legislative  authority  for  making  the  lease  was  shown,  and,  without 
such  authority,  we  think  the  lease  must  be  regarded  as  ultra  vires, 
and'  void.  The  authorities  bearing  upon  the  question  are  not  in 
entire  harmony,  but  the  weight  of  authority  seems  to  us  to  be  over- 
whelmingly in  favor  of  this  conclusion.  See  2  Beach  Corp.,  §§  831- 
856,  inclusive,  and  the  six  pages  of  authorities  pro  and  con  cited 
under  the  section  last  cited.  The  cases  are  too  numerous  for  cita- 
tion here,  and  the  few  cases  to  which  we  have  referred  will  furnish 
a  key  to  all  of  them. 

But  it  is  claimed  that,  inasmuch  as  the  defendant  company  took 
and  held  possession  of  the  plaintiff  company's  works  by  virtue  of 
the  lease,  ultra  vires  is  no  defense  to  an  action  to  recover  the  agreed 
rent.  We  do  not  doubt  that  the  plaintiff  company  is  entitled  to  re- 
cover a  reasonable  rent  for  the  time  the  defendant  company  actually 
occupied  the  works ;  but  do  not  think  the  amount  can  be  measured 
by  the  ultra  vires  agreement.  We  think  that  in  such  cases  the  re- 
covery must  be  had  upon  an  implied  agreement  to  pay  a  reason- 
able rent;  and  that,  while  the  ultra  vires  agreement  may  be  used 
as  evidence,  in  the  nature  of  an  admission,  of  what  is  a  reasonable 
rent,  it  cannot  be  allowed  to  govern  or  control  the  amount.  It 
seems  to  us  that  it  would  be  absurd  to  hold  that  the  ultra  vires 
lease  is  void,  and  at  the  same  time  hold  that  it  governs  the  rights 
of  the  parties  with  respect  to  the  amount  of  rent  to  be  recovered. 
A  void  instrument  governs  nothing.  We  think  the  correct  rule  is 
the  one  stated  by  Air.  Justice  Gray  in  a  recent  case  in  the  United 
States  Supreme  Court.  He  said  that  a  contract  made  by  a  corpora- 
tion which  is  unlawful  and  void  because  beyond  the  scope  of  its 
corporate  powers  does  not,  by  being  carried  into  execution,  become 
lawful  and  valid ;  and  that  the  proper  remedy  of  the  aggrieved 
party  is  to  disaffirm  the  contract,  and  sue  to  recover  as  on  a  quan- 
tum meruit  the  value  of  what  the  defendant  has  actually  received 
the  benefit  of.  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Keokuk  &  H. 
Bridge  Co.,  131  U.  S.  371,  9  Sup.  Ct.  Rep^  770.  We  think  this  is 
the  correct  rule.    2  Beach  Corp.,  §  423,  and  cases  there  cited. 

Exceptions  sustained. 

Peters,  C.  J.,  and  Emery,  Foster,  and  Haskell,  JJ.,  concurred.^ 

'Accord,  Slater  Woollen  Co.  v.  Lamb,  143  Mass.  420  (1887)  ;  Central  Trans- 
portation Co.  V.  Pnllman's  Car  Co.,  1,39  U.  S.  24  C1890)  ;  Pullman's  Car  Co.  v. 
Central  Transportatifjn  Co.,  171  U.  S.  138  (i8gH).  For  a  critical  discussion 
of  the  doctrine  of  these  L'nited  States  Supreme  Court  cases,  see  "Kifjhts  under 
imauthorized  corporate  contracts."  l)y  Georpe  Wharton  Pepper,  8  Yale  Law 
Journ.,  24-32.     Pie  concludes :    "It  is  submitted  that  we  shal!  never  see  our 


MUNICIPAL    CORPORATIONS.  79 

2.      MUNICIPAL  CORPORATIONS. 

McDonald  v.  mayor,  etc.,  of  new  york. 

68  N.  Y.  23.— 1876. 

Appeal  from  order  of  the  general  term  of  the  supreme  court  in 
the  first  judicial  department  reversing  a  judgment  in  favor  of 
plaintiff  entered  upon  a  verdict,  and  granting  a  new  trial. 

FoLGER,  J. — The  plaintiff  sues  to  recover  from  the  city  the  value 
of  materials  furnished  by  him  to  certain  officials,  which  were  used 
in  the  repair  of  a  public  way.  The  amount  he  claims  is  over  $i,6oo 
in  the  whole.  The  materials  were  furnished  at  different  times,  in 
parcels,  each  of  which,  except  one,  was  less  in  value  than  $250. 

He  does  not  aver,  nor  did  he  prove  in  terms,  that  a  necessity  for 
the  purchase  or  use  of  the  materials  was  certified  to  by  the  head  of 
the  department  of  public  works,  or  that  the  expenditure  therefor 
was  authorized  by  the  common  council  (Laws  of  1857,  vol,  i,  p.  886, 

commercial  law  in  a  satisfactory  state  until  the  courts  re-establish  the  com- 
mon-law doctrine  of  general  capacities.  [For  a  vindication  of  the  doctrine  of 
general  capacities  as  being  the  doctrine  of  the  common  law,  see  Pollock  on 
Contracts,  Appendix,  Note  D.,  "Limits  of  Corporate  Power"]  treating  con- 
tracts made  beyond  the  limits  of  chartered  activity  as  contracts  prohibited  but 
not  void — and  leaving  the  state  to  punish  the  disregard  of  the  prohibition 
while  enforcing  the  contract  between  the  parties.  The  enforcement  of  cor- 
porate contracts  in  spite  of  objections  as  to  corporate  power  represents  the 
overwhelming  tendency  of  American  decisions.  The  supreme  court  has  given 
the  contrary  doctrine  a  fair  trial  and  the  result  is,  from  the  practical  point  of 
view,  a  failure.  As  between  the  federal  courts  and  a  majority  of  the  state 
courts  the  advantage  is  with  the  former  as  respects  logic,  and  with  the  latter 
as  respects  commercial  convenience.  The  law  must,  of  course,  be  logical.  But 
shall  we  sacrifice  commercial  convenience  to  logic — or  reform  our  premises 
so  that  logic  and  convenience  may  coincide?" 

For  an  application  of  the  doctrine  of  "corporate  capackies,"  see  Bath  Gas 
Light  Co.  v.  Claffy,  151  N.  _Y.  24  (1896),  an  action  brought  against  a  surety 
to  recover  rent  in  an  ultra  vires  lease,  the  court  says :  "The  lease  now  in  ques- 
tion was  not  in  any  true  sense^  of  the  word  illegal.  It  was  undoubtedly  void 
as  against  the  state.  The  parties  to  the  lease  assumed  it  to  be  valid.  It  was 
contemplated,  as  the  provisions  of  the  lease  show,  that  the  lessee  would  con- 
tinue and  extend  the  business  before  carried  on  by  the  plaintiff,  and  it  is  not 
suggested  that  it  did  not,  during  its  occupation,  discharge  all  the  obligations 
to  the  public  which  rested  upon  the  plaintiff.  The  state  has  not  intervened, 
and  the  possession  of  the  property  has  now  been  restored  to  its  original  pro- 
prietors. The  contract  has  been  terminated  as  to  the  future,  and  all  that  re- 
mains undone  is  the  payment  by  the  lessee  of  the  unpaid  rent.  We  think  the 
demands  of  public  policy  are  fully  satisfied  by  holding  that,  as  to  the  public, 
the  lease  was  void,  but  that,  as  between  the  parties,  so  long  as  the  occupation 
under  the  lease  continued,  the  lessee  was  bound  to  pay  the  rent,  and  that  its 
recovery  may  be  enforced  by  action  on  the  covenant.  Public  policy  is  pro- 
moted by  the  discouragement  of  fraud  and  the  maintenance  of  the  obligation 
of  contracts ;  and  to  permit  a  lessee  of  a  corporation  to  escape  the  payment  of 
rent  by  pleading  the  incapacity  of  the  corporation  to  make  the  lease,  although 
he  has  had  the  undisturbed  enjoyment  of  the  property,  would  be,  we  think, 
most  inequitable  and  unjust." 


8o  BENEFITS    CONFERRED    UNDER    CONTRACT. 

cbap.  446,  sec.  38)  ;  nor  did  he  aver  or  prove  in  terms  that  a  con- 
tract for  the  purchase  of  the  materials  was  entered  into  by  the  appro- 
priate head  of  department,  upon  sealed  bids  or  proposals,  made 
in  compliance  v^'ith  public  notice  advertised.  (Id.)  The  existence 
and  stringency  of  these  statutory  provisions  are  recognized  by 
plaintiff's  counsel,  but  the  force  of  them  is  sought  to  be  avoided. 
It  is  urged  that  the  object  of  the  expenditure  was  proper,  as  it  is 
part  of  the  defendant's  corporate  duty  to  keep  public  ways  in  re- 
pair ;  that  the  material  was  delivered  to  the  superintendent  of  roads, 
an  official  of  the  defendant,  charged  with  carrying  that  duty  into 
practical  effect ;  and  that  the  plaintiff  had  reason  to  believe  that  the 
superintendent  was  acting  within  the  line  of  his  duties.  The  first 
two  of  these  propositions  may  be  admitted ;  the  third  may  not  be. 
Doubtless,  to  the  apprehension  of  the  plaintiff,  the  superintendent 
was  so  acting,  as  to  do  work  which  it  was  the  duty  of  defendant  to 
cause  to  be  done.  But  we  see  nothing  in  the  case  which  brought 
to  his  mind,  so  as  to  create  a  belief,  that  there  had  been  a  contract 
made  for  the  material,  as  above  indicated,  or  that  the  necessity  for 
the  expenditure  had  been  certified  to  and  authorized,  as  required 
by  law.  And  though  the  superintendent  of  roads  had  certified  to 
be  correct,  the  bills  for  the  materials,  rendered  by  the  plaintiff,  this 
did  not  meet  the  letter  of  the  statute  laws.  Such  certification  did 
not  precede  the  reception  of  the  material ;  nor  was  the  certification 
by  the  head  of  the  department ;  nor  was  the  taking  and  use  of  the 
material,  nor  payment  for  it,  authorized  by  the  common  council. 
Nor  can  it  be  that  the  provisions  of  the  statute  are  alone  for  the 
instruction  of  the  department  and  officials  of  the  defendant.  They 
were  a  restraint  upon  them,  but  upon  other  persons  as  well.  They 
put  upon  all  who  would  deal  with  the  city,  the  need  of  first  looking 
for  the  authority  of  the  agent  with  whom  they  bargain.  Quite 
clearly  do  they  impose  upon  the  paying  agent  of  the  defendant  a 
prohibition  against  an  unauthorized  expenditure.  And  are  they 
not  also  a  restraint  upon  the  municipality  itself?  They  are  fitted 
to  insure  official  care  and  deliberation,  and  to  hold  the  agents  of 
the  public  to  personal  responsibility  for  expenditure ;  and  they  are  a 
limit  upon  the  powers  of  the  corporation,  inasmuch  as  they  pre- 
scribe an  exact  mode  for  the  exercise  of  the  power  of  expenditure. 

It  is  said  that  the  plaintiff  had  a  right  to  presume  that  the  agents 
of  the  defendant  transacted  their  business  properly,  and  under 
sufficient  authority.  Does  not  this  involve,  also,  that  the  plaintiff 
had  a  right  to  presume  that  it  was  the  business  of  the  superintend- 
ent of  roads  to  purchase  material  for  the  city  upon  the  credit  of  the 
city,  and  that  he  had  authority  so  to  do?  This  cannot  be  main- 
tained. It  is  fundamental,  that  those  seeking  to  deal  with  a  munici- 
pal corporation  through  its  officials  must  take  great  care  to  learn 
the  nature  and  extent  of  their  power  and  authority.  Hodges  v. 
Buffalo,  2  Denio  no;  cited  33  N.  Y.  293;  Cornell  v.  Guilford,  i 
Den.  510;  Savings  Bank  v.  Winchester,  8  Allen  109.  The  plaintiff 
cites  United  States  Bank  v.  Dandridge,  12  Wheat.  70.    But  there 


MUNICIPAL    CORPORATIONS.  Ol 

it  is  said  that  if  the  charter  imposes  restrictions  they  must  be  obeyed. 
Could  the  plaintiff  presume  that  it  was  the  duty  of  the  defendant 
to  keep  the  Kingsbridj^e^road  in  repair?  No;  he  must  look  to  its 
charter  to  learn  of  that  duly.  The  same  instrument  would  show  him 
just  how  it  must  obtain  the  material  to  perform  that  duty.  The 
Gas  Company  v.  San  Francisco  (9  Cal.  453)  is  also  cited.  The  real 
question  there  decided  was,  that  a  city  can  be  held  to  have  incurred 
a  liability  otherwise  than  by  ordinance.  There  was  no  stress  in 
that  case  upon  any  inhibitions  in  the  charter  of  the  city.  The  re- 
sult was  arrived  at  by  a  divided  court. 

But  the  main  reliance  of  the*  plaintiff  is  upon  the  proposition  that 
the  defendant,  having  appropriated  the  materials  of  the  plaintiff 
and  used  them,  is  bound  to  deal  justly  and  to  pay  him  the  value  of 
them.  The  case  of  Nelson  v.  The  Mayor  (63  N.  Y.  535)  is  cited. 
The  learned  judge  who  delivered  the* opinion  in  that  case  does,  in- 
deed, use  language  which  approaches  the  plaintiff's  proposition ;  but 
the  judgment  in  that  case  did  not  go  upon  the  doctrine  there  put 
forth ;  and  when  the  opinion  is  scrutinized  it  does  not  quite  cover 
this  case.  It  is  said:  "If  it  (the  city)  obtains  property  under  a 
void  contract,  and  actually  uses  the  property,  and  collects  the  value 
of  it  from  property  oicners  by  means  of  assessments,  the  plainest 
principles  of  justice  require  that  it  should  make  compensation,  for 
the  value  of  such  property,  to  the  person  from  whom  it  was  ob- 
tained." The  words  we  have  marked  in  italics  indicate  a  differ- 
ence between  the  two  propositions ;  though  it  is  to  be  admitted,  not 
a  great  difference  in  the  principles  upon  which  each  rests.  The  case 
in  the  California  courts  (Argenti  v.  San  Francisco,  16  Cal.  255), 
goes  upon  the  ground  set  forth  in  the  opinion  in  Nelson's  case 
supra.  There  is,  however,  a  more  radical  difference  than  that  above 
noted  in  the  two  cases  cited  and  that  in  hand.  In  those  two  cases 
the  way  was  open  for  implying  a  promise  to  pay  what  the  prop- 
erty was  worth,  if,  with  no  disregard  of  statute  law,  such  an  impli- 
cation was  admissible ;  that  is  to  say,  there  was  in  those  cases,  so 
far  as  appears  from  the  facts,  no  express  inhibition  upon  the  city 
that  it  should  not  incur  a  liability  save  by  an  express  contract.  Here 
there  is  an  express  legislative  inhibition  upon  the  city,  that  it  may 
not  incur  liability  unless  by  writing  and  by  record.  How  can  it  be 
said  that  a  municipality  is  liable  upon  an  implied  promise,  when  the 
very  statute  wdiich  continues  its  corporate  life,  and  gives  it  its 
powers,  and  prescribes  the  mode  of  the  exercise  of  them,  says,  that 
it  sliall  not,  and  hence  cannot  become  liable,  save  by  express  prom- 
ise? Can  a  promise  be  implied,  which  the  statute  of  frauds  says 
must  be  in  writing  to  be  valid  ?  How  do  the  cases  diff'er  ?  The  Bank 
of  the  United  States  v.  Dandridge,  supra,  which  is  a  leading  case 
upon  the  doctrine  of  the  liability  of  a  corporation  aggregate,  upon 
a  promise  imiplied,  holds,  as  we  have  already  said,  that  if  the  charter 
imposes  restrictions  upon  the  manner  of  contracting,  they  must 
Woodruff's  Cases — 6 


82  BENEFITS    CONFERRED    UNDER    CONTRACT. 

be  observed.  And  the  California  cases  above  cited  concede  the 
same.  It  is  plain  that  if  the  restriction  put  upon  municipalities  by 
the  legislature,  for  the  purposes  of  reducing  and  limiting  the  incur- 
ring of  debt  and  the  expenditure  of  the  public  money,  may  be  re- 
moved, upon  the  doctrine  now  contended  for,  there  is  no  legislative 
remedy  for  the  evils  of  municipal  government,  which  of  late  have 
excited  so  much  attention  and  painful  foreboding.  Restrictions  and 
inhibition  by  statute  are  practically  of  no  avail,  if  they  can  be 
brought  to  naught  by  the  unauthorized  action  of  every  ofificial  of 
lowest  degree,  acquiesced  in,  or  not  repudiated  by  his  superiors. 
Donovan  v.  The  Mayor  (33  N.  Y.  291),  seems  to  be  an  author- 
ity in  point,  though  the  exact  question  now  presented  was  not  con- 
sidered. And  incidental  remarks  of  Denio,  J.,  in  Peterson  v.  The 
Mayor  (17  N.  Y.  449),  are  to  the  same  purport.  And  see  Peck  v. 
Burr  (10  N.  Y.  294).  The  views  here  set  forth  are  not  to  be  ex- 
tended beyond  the  facts  of  the  case.  It  may  be  that  where  a  muni- 
cipality has  come  into  the  possession  of  the  money  or  the  property 
of  a  person,  without  his  voluntary  intentional  action  concurring 
therein,  the  law  will  fix  a  liability  and  imply  a  promise  to  repay  or 
return  it.  Thus,  money  paid  by  mistake,  money  collected  for  an  il- 
legal tax  or  assessment ;  property  taken  and  used  by  an  official,  as 
that  of  the  city,  when  not  so: — in  such  cases,  it  may  be  that  the 
statute  will  not  act  as  an  inhibition.  The  statute  may  not  be  carried 
further  than  its  intention,  certainly  not  further  than  its  letter.  Its 
purpose  is  to  forbid  and  prevent  the  making  of  contracts  by  un- 
authorized official  agents  for  supplies  for  the  use  of  the  corpora- 
tion. This  opinion  goes  no  further  than  to  hold  that  where  a  person 
makes  a  contract  with  the  city  of  New  York  for  supplies  to  it,  with- 
out the  requirements  of  the  charter  being  observed,  he  may  not  re- 
cover the  value  thereof  upon  an  implied  liability.  The  judgment 
should  be  affirmed.   All  concur.    Judgment  affirmed.^ 

'In  Dickinson  v.  City  of  Poughkeepsie,  75  N.  Y.  65,  75  (1878),  the  court 
says :  "With  regard  to  the  first  ground  of  recovery  upon  a  quantum  meruit 
the  point  seems  to  be  settled  adversely  to  the  plaintiffs  by  authority.  The  cases 
generally  hold  that  there  can  be  no  recovery  against  a  municipality  for  services 
performed  upon  a  contract  void  for  want  of  power  to  make  it,  although  per- 
formed upon  the  property  of  the  municipality,  and  of  which  they  have  the 
benefit.  As  was  said  in  Burrill  v.  Boston  (2  Clififord  590),  there  can  be 
no  implied  promise  to  pay  upon  a  nuantuni  meruit,  where  there  is  no  power  to 
contract,  cither  expressly  or  impliedly,  except  upon  a  written  contract  with 
the  lowest  bidder  after  advertisement.  (See  Bonesteel  v.  New  York,  22  N.  Y. 
162;  Brady  v.  New  York.  20  N.  Y.  312;  Hodges  v.  Buffalo,  2  Den.  no;  Mc- 
Donald V,  New  York,  68  N.  Y.  2Z" 


MUNICIPAL    CORPORATIONS. 


ALLEN  V.  INTENDANT  AND  COUNCILMEN  OF  LA  FAY- 
ETTE. 

89  Ala.  641. — 1889. 

McClellan,  J. — The  intendant  and  councilmen  of  the  town  of 
La  Fayette  on  or  soon  after  March  18,  1889,  purchased  from  one 
Schuessler  a  brick  college  building  and  grounds,  situate  in  La  Fay- 
ette, and  took  a  quitclaim  deed  to  the  property  to  themselves,  the 
said  intendant  and  councilmen.  Only  a  small  part  of  the  purchase 
money  was  paid  out  of  the  funds  of  the  town,  and  the  balance, 
about  $1,300,  was  borrowed  from  Mrs.  S.  A.  Frederick  by  the  town 
authorities,  and  paid  to  Schuessler,  For  the  repayment  of  this  loan 
warrants  were  regularly  drawn  against  the  treasury  of  the  town  for 
the  sums  of  $659.40,  payable  January  i,  1890,  and  $667.72,  payable 
March  i,  1890,  respectively,  and  delivered  to  Mrs.  Frederick.  The 
present  bill  is  exhibited  by  resident  property  owners  and  tax-pay- 
ers of  the  town  of  La  Fayette,  and  seeks  to  enjoin  the  payment  of 
said  warrants  on  the  grounds  (i)  that  the  municipality  of  La 
Fayette  was  without  authority  to  purchase  the  schoolhouse  or  col- 
lege building,  and  that  the  money  was  loaned  by  Mrs.  Frederick 
with  full  knowledge  that  it  was  to  be  used  in  that  behalf,  and  war- 
rants taken  by  her  with  full  knowledge  that  it  had  been  so  applied ; 
and  (2)  that  the  intendant  and  councilmen  of  the  town  of  La  Fayette 
had  no  power  under  its  charter  to  horroiv  money  for  any  purpose. 
[Then  follozvs  a  discussion  as  to  the  authority  of  the  defendant s.~\ 

The  intendant  and  councilmen  of  La  Fayette  had  no  authority, 
therefore,  to  borrow  this  money,  nor  had  they  any  authority  to  draw 
the  warrants  which  were  drawn  and  delivered  to  Mrs.  Frederick. 
They  were  the  trustees  for  the  inhabitants  of  the  town.  Their  ac- 
tion in  excess  of  the  power  with  which  the  trust  relation  clothed 
them,  and  in  violation  of  the  duties  they  owed  to  their  cestui  que 
trustent,  the  present  complainants,  among  others,  was  of  no  man- 
ner of  efficacy  in  fixing  a  liability  on  those  for  whom  they  thus 
usurped  the  power  of  acting.  The  warrants  in  the  hands  of  Mrs. 
Frederick  are  as  if  they  were  not,  and  had  never  been.  Neither  the 
municipality  of  La  Fayette,  nor  any  of  its  officers  or  agents,  is  under 
any  obligation,  legal,  equitable,  or  moral,  to  pay  those  ivarranfs,  or 
to  fulfill  the  contract  out  of  which  they  sprung.  But  back  of  that 
contract,  and  back  of  those  warrants,  there  is,  on  the  facts  pre- 
sented by  the  bill  and  accentuated  by  the  answers,  not  only  a  moral 
but  a  legal  liability  resting  on  the  municipality  of  La  Fayette,  and  on 
its  officers,  to  repay  the  money  zvhich  came  from  Mrs.  Frederick, 
and  has  been  used  by  the  corporation  for  authorised  corporate  pur- 
poses. In  other  words,  the  town  of  La  Fayette  is  liable  as  upon  an 
implied  assumpsit,  not  under,  but  wholly  apart  from,  the  unauthor- 
ized contract,  and  not  for  the  amount  its  officers  borroiced  from 
Mrs.  Frederick,  but  for  the  amount  of  her  money  which  they  re- 


84  BENEFITS    CONFERRED    UNDER    CONTRACT. 

ccived  and  applied  to  the  purchase  of  a  house  which  the  charter 
authorized  them  to  buy  and  the  town  to  hold,  which  was  reason- 
ably necessary  to  the  exercise  and  perfonnance  of  expressly  granted 
and  imposed  functions  and  duties,  and  which  the  aise  of  her  funds 
had  enabled  the  corporation  to  acquire  and  devote  to  its  legitimate 
purposes. 

The  authorities  are  not  uniform  to  this  proposition.  It  is  how- 
ever believed  to  be  eminently  sound  in  principle,  and  has  the  sup- 
port of  some  of  the  most  distinguished  law  writers  and  of  courts 
of  marked  ability  and  learning.  It  is  thus  formulated  by  Mr.  Brice 
with  general  reference  to  both  public  and  private  corporations : 
"Persons  who  have  in  any  way  advanced  money  to  a  corporation, 
which  money  has  been  devoted  to  the  necessaries  of  the  corporation, 
are  considered  in  chancery  [and,  also,  it  would  seem  to  follow,  in 
the  equitable  action  for  money  had  and  received  at  law]  as  cred- 
itors of  the  corporation  to  the  extent  the  loan  has  been  expended," 
and,  in  support  of  the  doctrine  thus  stated,  he  cites  many  cases  in 
which  corporations  without  any  authority,  expressed  or  implied,  to 
that  end  had  borrowed  money,  and  been  .holden,  although  the  con- 
tract itself  was  wholly  void,  to  account  for  so  much  of  it  as  had 
been  expended  in  furthering  the  legitimate  objects  of  the  concern. 
Green's  Brice,  Ultra  Vires,  724  et  seq.  And  in  this  connection  the 
American  editor  of  the  work  cited  observes :  "In  the  United  States 
the  defense  of  nltra  vires,  interposed  against  a  contract  wholly  or  in 
part  executed,  has  very  generally  been  looked  upon  with  disfavor. 
The  result  has  been  that  in  some  cases  a  liberal  construction  has 
been  applied  so  as  to  destroy  the  foundation  of  the  defense ;  in 
others,  the  courts  have  allowed  the  recovery  of  the  money  paid,  not 
upon  the  contract,  but  because  of  the  money  received  and  the  bene- 
fits enjoyed ;  while  in  still  another  class  of  cases  the  doctrine  of  es- 
toppel in  pais  has  been  applied  to  exclude  the  defense."  And  many 
American  cases  are  cited  which  support  one  or  the  other  of  the  po- 
sitions stated  as  being  taken  by  the  courts  of  this  country  in  respect 
to  private  corporations. 

In  regard  to  municipal  corporations,  the  opinion  of  Judge  Dillon 
manifestly  is  in  line  with  the  position  we  have  taken.  We  believe 
this  to  be  a  correct  formulation  of  his  views  of  the  law  on  the  point 
under  consideration,  as  gathered  from  his  inestimable  work  on  Mu- 
nicipal Corporations.  That  municipal  corporations  are  liable  to  ac- 
tions of  implied  assumpsit  with  respect  to  money  or  property  re- 
ceived by  them  and  a]:)plicd  beneficially  to  their  authorized  objects 
through  contracts  whicli  are  simply  nnanthoriacd,  as  distinguished 
from  contracts  which  are  prohibited  by  their  charters,  or  some  other 
law  bearing  upon  them,  or  are  malum  in  se,  or  violative  of  public 
policy.  I  Dill.  Mun.  Corp..  g§  126,  132,  133,  459-465 ;  2  Dill.  Mun. 
Corp.,  §§  935,  937,  938.  Thus  in  a  note  to  section  126  it  is  said :  "If 
money  is  improperly  borrowed  in  advance  of  liabilities  actually 
created,  and  reaches  the  municipal  treasury,  and  is  expended  by 
direction  of  the  governing  body  for  authorized  municipal  objects. 


MUNICIPAL    CORPORATIONS.  85 

the  municipality  may  then  *  *  *  be  Hable  in  a  proper  action  or 
suit ;  but  the  action  should  be,  we  think,  for  money  had  and  re- 
ceived, or  by  suit  in  equity,  and  not  upon  the  invalid  bonds."  And 
under  section  935  it  is  said  that,  "where  the  corporation  receives 
and  retains  the  consideration  of  an  ultra  vires  contract,  it  may  be 
liable  upon  an  implied  assumpsit  in  respect  to  such  consideration." 
And  the  opinion  of  Chief  Justice  Field  in  a  case  where  the  sub- 
ject underwent  very  thorouj^h  examination  is  quoted  approvingly 
to  the  effect  that  "the  doctrine  of  implied  municipal  liability  applies 
to  cases  where  money  or  property  of  a  party  is  received  under  such 
circumstances  that  the  general  law,  independent  of  express  con- 
tract, imposes  the  obli.q'ation  upon  the  city  to  do  justice  with  re- 
spect to  the  same.  If  the  city  obtain  money  of  another  by  mistake 
or  without  authority  of  law,  it  is  her  duty  to  refund  it,  not  from  any 
contract  entered  into  by  her  on  the  subject,  but  from  the  general 
obligation  to  do  justice,  which  binds  all  persons,  whether  natural 
or  artificial.  If  the  city  obtain  other  property  which  does  not  be- 
long to  her,  it  is  her  duty  to  restore  it,  or  if  used  by  her,  to  render 
an  equivalent  to  the  true  owner  from  the  like  general  obligation ; 
the  law,  which  always  intends  justice,  implies  a  promise."  Argenti 
V.  San  Francisco,  16  Cal.  255. 

Justice  Miller,  speaking  of  cases  where  corporations  have  been 
sued  on  contracts  which  they  have  successfully  resisted  because  they 
were  ultra  vires,  observes :  "But  even  in  this  class  of  cases,  the 
courts  have  gone  a  long  way  to  enable  parties  who  have  parted  with 
property  or  money  on  the  faith  of  such  contracts  to  obtain  justice 
by  recovery  of  the  property  or  the  money,  specifically,  or  as  money 
had  and  received  to  plaintiff's  use."  Salt  Lake  City  v.  Hollister, 
118  U.  S.  256,  6  Sup.  Ct.  Rep.  1055.  To  a  like  effect  are  the  fol- 
lowing cases:  Pimental  v.  San  Francisco,  21  Cal.  362;  Clark  v. 
Saline  Co.,  9  Neb.  516,  4  N.  W.  Rep.  246;  Marsh  v.  Fulton  Co.,  10 
Wall.  676;  Louisiana  v.  Wood,  102  U.  S.  294;  Chapman  v.  County 
of  Douglas,  107  U.  S.  348,  2  Sup.  Ct.  Rep.  62, 

The  case  of  Read  v.  Plattsmouth,  107  U.  S.  568,  2  Sup.  Ct.  Rep. 
208,  involved  the  constitutionality  of  a  statute  of  Nebraska  which 
undertook  to  impart  legality  and  vitality  to  certain  previously  issued 
bonds  of  the  city  of  Plattsmouth,  upon  which  money  had  been  raised 
by  the  city,  and  applied  to  the  acquisition  of  a  lot,  and  the  building 
thereon  of  a  schoolhouse,  but  which  were  void  for  the  lack  of 
charter  power  to  issue  them.  The  question  of  the  constitutionality 
of  the  statute  turned  upon  a  consideration  of  whether,  granting  the 
utter  invalidity  of  the  bonds  as  such,  the  city  was  nevertheless  not 
bound  for  the  money  thus  received  and  used  for  corporate  pur- 
poses ;  and  to  this  point  Justice  Matthews  delivered  the  opinion 
of  the  supreme  court  of  the  United  States  as  follows :  "In  the  pres- 
ent case,  the  statute  does  not  impose  upon  the  city  of  Plattsmouth, 
by  an  arbitrary  act,  a  burden  without  consent  and  consideration.  On 
the  contrary,  upon  the  supposition  that  the  bonds  issued,  as  to  the 
excess   of  $15,000,    were   void    because   unauthorized,    the   citv   of 


86  BENEFITS    CONFERRED    UNDER    CONTRACT. 

Plattsmouth  received  the  money  of  the  plaintiff  in  error,  and  ap- 
phed  it  to  the  purpose  intended,  of  building  a  schoolhouse  on  prop- 
erty, the  title  to  which  is  confirmed  to  it  by  the  very  statute  now 
claimed  to  be  unconstitutional,  and  an  obligation  to  restore  the  value 
thus  received,  kept,  and  used,  immediately  arose.  This  obligation, 
according  to  general  principles  of  law  accepted  in  Nebraska,  was 
capable  of  judicial  enforcement." 

The  case  of  Cause  v.  City  of  Clarksville  involved  the  power  of  a 
municipality,  invested  with  the  ordinary  corporate  powers,  to  bor- 
row money.  The  power  was  denied,  and  the  bonds  on  which  the 
money  was  borrowed  were  held  to  be  void.  After  announcing  this 
conclusion,  Dillon,  circuit  judge,  proceeds:  'Tt  will  not  validate 
these  bonds  so  as  to  make  them  the  basis  of  a  recovery  even  if  it 
be  shown  that  the  money  borrowed  was  in  each  instance  used  for 
the  purpose  for  which  they  are  recited  in  the  deed  to  have  been 
borrowed.  But  the  plaintiff  may  amend  and  add  in  respect  to  these 
bonds  counts  in  the  nature  of  counts  for  money  had  and  received. 
Adhering  to  the  decisions  of  this  court, — Treat,  J.,  in  Wood  v. 
Louisiana,  [affirmed  on  appeal,  and  reported  in  102  U.  S.  294,]  — 
the  present  holder  of  the  bonds  will  then  be  treated  as  the  assignee 
of  the  original  holder  or  payee,  in  respect  of  the  money  actually 
lent  to  the  city ;  and,  if  after  the  city  obtained  it,  the  same  was  in 
fact  expended  for  the  erection  and  repair  of  wharves,  or  the  im- 
provement of  the  streets,  or  possibly  if  expended  for  other  author- 
ized municipal  purposes  under  the  authority  of  the  city  council, 
the  amount  advanced  with  lawful  interest,  less  payments  thereon, 
may  be  recovered."  Cause  v.  Clarksville,  5  Dill.  180.  [Then  follozvs 
a  rcviezv  of  the  follozving  Alabama  cases:  Simpson  v.  Lauderdale 
Co.,  56  Ala.  64 ;  Wetumpka  v.  Wharf  Co.,  63  Ala.  61 1 ;  Mont- 
gomery V.  Co.,  31  Ala.  76;  Grand  Lodge  v.  Waddill,  36  Ala.  313; 
Eufaula  v.  McNab,  67  Ala.  588;  Railroad  Co.  v.  Dunn,  51  Ala.  128.] 

So  much  for  the  adjudications  of  this  court.  We  repeat  that 
nothing  decided  in  them  is  opposed  to  the  view  we  have  taken. 
There  are  some  cases  in  other  states  which  assert  the  contrary  doc- 
trine. One  of  them  is  Hackettstown  v.  Swackhamer,  37  N.  J.  Law 
191,  decided  by  the  supreme  court  of  New  Jersey,  which  ranks 
among  the  ablest  in  the  country.  The  opinion  denies  a  right  of  re- 
covery for  money  had  and  received  and  appropriated  to  corporate 
purposes,  when  it  has  been  obtained  on  an  ultra  vires  borrowing 
contract ;  Beasley,  C.  J.,  intimating  that  the  only  remedy,  if  any, 
was  in  equity,  to  be  subrogated  to  the  claims  of  creditors  whose 
debts  had  been  paid  with  the  borrowed  money.  Judge  Dillon  says 
of  this  proposition  :  "No  necessity  is  perceived  for  so  strict  a  doc- 
trine." I  Dill.  Mun.  Corp.,  §  126,  note.  No  other  cases  are  cited 
by  counsel  to  this  point  than  those  we  have  referred  to.  Two  or 
three  others,  tending  in  greater  or  less  degree  to  support  the  view 
taken  by  the  New  Jersey  court,  have  come  under  our  observation 
in  the  somewhat  exhaustive  examination  we  have  given  this  ques- 
tion, but  our  conclusion  is  that  the  weight  of  authority  is  in  favor 


MUNICIPAL    CORPORATIONS.  O/ 

of  the  implied  liability  of  municipal  corporations,  under  the  facts 
disclosed  in  this  record. 

We  cannot  perceive  that  the  doctrine  is  open  to  objection  on  the 
ground  of  its  supposed  evil  tendencies  and  consequences.  It  is 
shorn  of  all  perilous  possibilities  by  the  limitations  which  hedge  it 
about.  It  cannot  obtain  where  the  charter,  or  other  statute  operat- 
ing in  the  premises,  contains  a  prohibition  of  the  power  to  borrow 
money,  since  a  promise  cannot  be  implied  in  the  face  of  express  law, 
but  only  in  cases  where,  as  in  this  one,  there  is  merely  a  defect  of 
power.  Id.,  §  451.  It  involves  no  danger  of  the  municipality  being 
charged  with  moneys  wdiich  have  been  appropriated  by  its  officers 
to  their  own  use,  or  even  to  the  use  of  the  corporation,  except  in 
the  manner,  to  the  extent,  and  for  the  purposes  authorized  by  the 
charter,  as  in  either  case  the  implication  will  not  arise,  and  cor- 
porate liability  will  not  attach.  None  of  the  evils  which  are  justly 
supposed  to  result  from  the  power  to  borrow  money,  which  are  not 
also  attendant  upon  the  capacity  to  incur  debts,  and  which  therefore 
have  led  to  a  denial  of  the  former  power  unless  expressly  or  by 
necessary  intendment  conferred,  while  the  latter  is  admitted  as  in- 
cident to  ordinary  municipal  functions,  can  possibly  supervene  where 
the  money  which  has  been  borrowed  has  also  been  honestly  devoted 
to  expenditures  for  w'hich  the  corporate  authorities  might  have  in- 
curred debt.  And,  to  declare  liability  in  the  one  instance,  and  deny 
it  in  the  other,  on  the  ground  of  evils  which  pertain  alike  to  both, 
would  be  an  anomaly  to  which  we  cannot  subscribe.  Indeed,  we  ap- 
prehend that  the  power  to  create  debts  may  be  productive  of  more 
evils  in  municipal  government  than  could,  in  the  nature  of  things, 
result  from  the  doctrine  we  are  considering,  when  would-be  lenders 
of  money  come  to  understand  that  the  return  of  their  proverbially 
timid  capital  depends  not  upon  the  contracts  they  make,  but  on  the 
faithful  application  of  the  loan  to  certain  specific  objects,  by  per- 
sons over  whom  they  have  no  control. 

From  every  point  of  view,  therefore,  we  feel  safe  in  affirming 
that,  under  the  case  presented  by  the  bill  and  answer, — there  really 
being  no  dispute  about  the  facts  in  this  regard, — Mrs.  Frederick 
has  a  valid  demand  against  the  town  of  La  Fayette  for  the  amount 
of  money  advanced  by  her,  not  because  the  corporate  authorities 
agreed  to  repay  it  to  her,  but  because  they  have  legitimately  used 
it  for  the  benefit  of  the  town,  in  a  way  and  to  an  end  fully  author- 
ized by  its  charter.  The  warrants  she  holds  are  not  enforceable  as 
such,  yet  they  truly  represent  the  amount  of  her  claims,  and  in  the 
payment  of  that  amount  the  corporate  authorities  would  do  no  more 
than  equity  and  justice  require  of  them.  It  would  be  an  idle  and 
useless  thing,  therefore,  to  enjoin  their  payment,  and  exercising 
that  discretion  which  may  always  be  indulged  with  reference  to  the 
grant  or  refusal  of  an  injunction,  when  substantial  equity  does  not 
demand  the  issuance  of  the  writ,  we  decline  to  reinstate  it  in  this 
case.  McBryde  v.  Sayre.  86  Ala.  458.  5  South.  Rep.  791.  The  de- 
cree of  the  chancellor  dissolving  the  injunction  is  affirmed. 


88  BENEFITS    CONFERRED    UNDER    CONTRACT. 

Note  in  4  Columbia  Law  Revieiv,  d/;  *  *  *  *  7}^e  cases 
fall  into  more  or  less  well-defined  classes,  but  unfortunately  there  is  a 
lack  of  harmony  in  every  class.  Still  a  close  inspection  shows  a 
general  working-  principle  underlying  the  whole  subject.  It  is  this: 
Municipal  corporations  stand  in  particular  need  of  protection  against 
their  officers.  In  order  to  afford  this  protection  the  legislature  has 
usually  defined  minutely  the  powers  of  these  officers  and  the  man- 
ner in  which  the  same  shall  be  exercised.  When  any  act  of  the 
corporation,  through  its  officers,  will,  directly  or  indirectly,  vary 
in  kind  or  degree  the  burden  thus  authorized  to  be  placed  upon 
the  members  of  the  corporation,  public  policy  demands  that  recov- 
ery in  any  form  shall  be  denied.  If,  however,  reparation  will  not 
in  any  manner  affect  the  burden  upon  the  tax-payers,  the  ordinary 
principles  of  quasi-contract  will  be  applied. 

The  folloAving  classes  embrace  most  of  the  cases  that  have  arisen : 
First  class — where  the  corporation  has  no  power  at  all  to  make  the 
attempted  contract.  This  class  should  be  subdivided  as  follows : 
(i)  if  reimbursement  for  the  services  or  property  received  by  the 
corporation  would,  in  any  manner,  increase  or  vary  the  prescribed 
burden  upon  the  tax-payers,  there  should  be  no  recovery  either  in 
contract  or  quasi-contract.  Agawam  Nat.  Bank  v.  South  Hadley 
(1880),  128  Mass.  503;  Litchfield  v.  Ballou  (1884),  114  U.  S.  190; 
contra,  Argenti  v.  San  Francisco  (i860),  16  Cal.  256.  (2)  But  if 
recovery  by  the  plaintiff  means  in  effect  mere  restitution  of  what 
the  corporation  has  unlawfully  received,  recovery  is  allowed  in 
quasi-contract.  Dill  v.  Wareham  (1844),  7  Mete.  438;  Leonard  v. 
City  of  Canton  (1858),  35  Miss.  189.  In  such  a  case  equity  will 
not  relieve  the  municipal  corporation  from  such  a  contract  unless 
it  restores  the  property.  Turner  v.  Cruzen  (1884),  70  la.  202.  The 
denial  of  recovery  for  money  paid  for  unauthorized  bonds  is  an  ex- 
ception to  this  rule  and  rightly,  for  repayment  of  the  money  loaned, 
with  interest,  would  exactly  accomplish  the  prohibited  purpose. 
Thomas  v.  City  of  Richmond  (1870),  12  Wall.  349;  Litchfield  v. 
Ballou,  supra. 

Second  class — where  the  corporation  is  authorized  to  contract 
for  a  particular  purpose,  but  only  in  a  certain  manner.  This  class 
is  capable  of  several  subdivisions,  (i)  If  the  formalities  required, 
relate  to  the  formation  of  the  contract,  the  case  is  treated  as  if  it 
fell  within  the  first  class,  and  the  same  tests  should  be  applied. 
McDonald  v.  Mayor  (1876),  68  N.  Y.  23;  Zottman  v.  San  Fran- 
cisco (1862),  20  Cal.  96.  The  reason  given  is  that  recovery  in  any 
manner  would  completely  nullify  the  statutes  which  prescribe  the 
formalities  as  safeguards  for  the  municipality.  But  see,  contra, 
Gas-Light  Co.  v.  Memphis  (1894),  93  Tenn.  612;  Lincoln  Land 
Co.  v.  Grant  (1898),  57  Nebr.  70.  (2)  If  the  prescribed  mode  of 
payment  is  the  only  formality  disregarded  in  the  contract,  recovery 
in  quasi-contract  is  allowed.  Hitchcock  v.  Galveston  (1877),  96 
U.  S.  34T  ;  Chapman  v.  County  of  Douglass  (1882).  T07  U.  S.  348. 
The  reason  for  the  distinction  is  that  payment  in  the  legal  way  will 


MUNICIPAL    CORPORATIONS.  89 

place  no  more  burden  on  the  municipality  than  was  authorized. 
(3)  If  the  required  formalities  have  not  been  complied  with  but 
the  proper  officers  certify  that  they  have,  the  plaintiff  should  re- 
cover if  he  were  honestly  misled.  Louisiana  v.  Wood  (1880),  102 
U.  S.  294;  Pimental  v.  San  Francisco  (1863),  21  Cal.  352;  Moore 
V.  Mayor  (1878),  73  N.  Y.  238.  (4)  If  some  insignificant  minis- 
terial act  has  been  omitted,  recovery  is  not  therefore  denied.  Carey 
v.  East  Saginaw  (1889),  79  Mich.  73.  There  is  another  class  of 
cases  where  the  power  to  make  the  contract  is  given  and  no  for- 
malities are  prescribed.  If  no  express  contract  is  made  but  benefits 
are  conferred  at  request  recovery  may  be  had,  but  it  is  properly  on 
a  contract  implied  in  fact  and  not  in  quasi-contract.  Port  Jervis 
Water  Co.  v.  Port  Jervis  (1893),  7^  ^^n  66;  Nashville  v.  Toney 
(1882),  10  Lea  643;  Kramrath  v.  Albany  (1891),  127  N.  Y.  575. 
Contra,  French  v.  Auburn  (1872),  62  Me.  452. 


Note  in  1/  Harvard  Law  Reviezv,  S43'  By  an  action  in  quasi- 
contract  one  who  does  work  under  a  contract  supposedly  valid,  but 
actually  invalid,  can  generally  recover  the  value  of  the  benefits  con- 
ferred by  his  services.  Van  Deusen  v.  Blum,  18  Pick.  (Mass.)  229. 
Where,  however,  services  are  so  rendered  for  a  municipal  corpora- 
tion other  considerations  become  important.  Often  there  are  stat- 
utes expressly  prohibiting  recovery.  Where  there  are  no  such  stat- 
utes the  question  has  frequently  arisen  and  the  cases  have  been 
divided  into  two  classes :  first,  where  the  services  are  rendered  under 
a  contract  ultra  vires  in  its  nature ;  second,  where  the  services  are 
rendered  under  a  contract  void  because  of  noncompliance  with  some 
technical  requirement  either  of  the  general  law  or  the  corporation's 
charter.  A  third  class  is  suggested  by  a  recent  case  in  which  re- 
covery was  allowed  for  services  rendered  under  a  contract  made 
for  the  corporation  by  an  agent  who  had  no  authority.  City  of 
Chicago  v.  McKechney,  68  N.  E.  Rep.  954  [205  111.  372  (1903)]. 

In  the  first  class  of  cases,  services  performed  under  an  ultra  vires 
contract,  recovery  in  quasi-contract  is  allowed  only  where  it  will 
impose  no  burden  on  the  tax-payers ;  where  in  effect  recovery  is 
merely  to  return  what  the  corporation  has  received.  For  example, 
recovery  was  allowed  of  money  paid  to  a  town  on  a  void  contract 
for  the  sale  of  a  fishery.  Dill  v.  Inhabitants  of  Wareham,  7  Met. 
(Mass.)  438.  This,  it  is  submitted,  is  the  correct  rule.  If  what  has 
been  received  can  be  returned,  it  must  be  paid  for  when  not  re- 
turned. So  also  if  it  has  been  applied  to  legitimate  corporate  pur- 
poses, it  must  be  paid  for.  In  other  cases,  however,  there  should 
be  no  liability.  To  allow  recovery  would  be  to  allow  the  corporate 
officials  to  indirectly  impose  a  burden  on  the  tax-payers  which  the 
law  has  directly  forbidden,  and  would  open  the  door  to  extensive 
frauds  on  the  public. 

Where  work  is  done  under  a  contract  void  because  of  some  tech- 


90  BENEFITS    CONFERRED    UNDER    CONTRACT. 

nicality  and  not  in  its  substance  ultra  vires,  it  seems  clear  that  there 
should  be  a  remedy  in  quasi-contract  for  the  reasonable  value  of  the 
benefits  conferred.  An  individual  who  has  procured  services  by 
means  of  a  contract  of  this  sort,  invalid,  for  instance,  because  of 
noncompliance  with  the  statute  of  frauds,  is  liable  for  their  value 
in  quasi-contract.  Cadman  v.  Markle,  76  Mich.  448;  Montague  v. 
Garnett,  3  Bush  (Ky.)  297.  A  corporation  in  such  cases  should 
stand  in  the  same  position  as  an  individual.  The  services  have  been 
requested  and  received.  They  are  services  for  which  the  corpora- 
tion had  a  right  to  contract,  and  it  is  held  for  no  more  than  the 
benefit  received.  A  more  obvious  case  for  quasi-contract  can  hardly 
be  imagined.  The  courts,  however,  in  such  cases  are  not  unanimous. 
Recovery  is  generally  made  to  turn  on  the  nature  of  the  technical 
defect.    McDonald  v.  Mayor,  etc.,  New  York,  68  N.  Y.  23. 

The  courts,  in  opposition  to  the  principal  case,  have  generally 
held  that  where  services  are  performed  under  a  contract  made  for  the 
corporation  by  an  officer  who  had  no  authority,  there  can  be  no  re- 
covery. Bonesteel  v.  ]\Iayor,  etc..  New  York,  22  N.  Y.  162.  It  is 
said  that  to  allow  recovery  in  such  cases  would  make  possible  ex- 
tensive frauds  on  the  public.  Hague  v.  City  of  Philadelphia,  48 
Pa.  St.  527.  This  objection,  however,  seems  untenable,  for  the 
proper  authorities  have  the  power  to  make  contracts  for  the  same 
purpose,  and  recovery  is  limited  to  the  benefit  conferred.  There 
seems  to  be  no  reason  for  treating  the  corporation  in  such  cases  dif- 
ferently from  an  individual.  Recovery  may,  however,  be  objection- 
able for  other  reasons.  The  services  are  not  at  the  request  of  the  cor- 
poration. Consequently  on  general  principles  of  quasi-contracts  there 
is  no  liability  unless  the  corporation  voluntarily  keeps  the  benefits 
conferred.  Zottman  v.  San  Francisco,  20  Cal.  96.  So,  unless  the  cor- 
poration, having  the  power  to  return,  nevertheless  retains  the  bene- 
fit of  the  services,  it  should  incur  no  liability  in  this  class  of  cases. 


b.     Statute  of  Frauds. 
i.     Plaintiff  in  Default. 

THOMAS  V.  BROWN. 
L.  R.  I  Q.  B.  D.  714.— 1876. 

iNTERrLEADER  issue  obtained  in  an  action  brought  by  plaintifif 
against  Croucher,  an  auctioneer,  to  recover  a  deposit. 

The  plaintiff  signed  a  contract  for  the  purchase  of  a  leasehold 
shop  from  the  "vendor,"  and  the  auctioneer  signed  "as  agent  of  the 
vendor."  The  vendor's  name  did  not  appear  in  the  contract.  The 
plaintifif  paid  a  deposit  of  /70.     Subsequently  plaintifif  repudiated 


STATUTE   OF   FRAUDS.  9I 

the  contract  on  the  ground  (inter  alia)  that  the  contract  did  not 
disclose  the  name  of  the  vendor,  and  was  therefore  a  memorandum 
insufficient  to  satisfy  the  statute  of  frauds. 

Mellor,,J. — *  *  *  *  'pj^g  two  questions  for  our  considera- 
tion are,  first,  whether  the  contract  was  a  vaHd  contract,  and,  sec- 
ondly, if  it  was  not,  whether  the  plaintiff  is,  tmdcr  the  circum- 
stances, entitled  to  recover  back  the  deposit.  I  am  of  opinion  that 
our  judgment  ought  to  be  for  the  defendant.  Several  cases  have 
been  decided  on  the  point  now  raised,  particularly  two  cases  which 
came  before  the  master  of  the  rolls:  Sale  v.  Lambert,  L.  R.  i8 
Eq.  I,  and  Potter  v.  Duffield,  L.  R.  18  Eq.  4.  In  the  first  of  these 
cases  a  memorandum  of  agreement  was  held  to  be  sufficient  within 
the  statute  of  frauds,  though  the  vendor  was  not  described  other- 
wise than  as  "the  proprietor"  of  the  premises,  the  m.aster  of  the  rolls 
saying  that  the  term  "proprietor"  was  an  excellent  description, 
and  apparently  holding  that  this  word,  with  nothing  else  in  the 
document  to  enlarge  it,  was  quite  sufficient.  Now,  comparing  this 
decision  with  the  later  one,  Potter  v.  Duffield,  where  the  same 
learned  judge  held  that  the  description  "vendor"  was  insuffi- 
cient, I  have  some  difficulty  in  assenting  to  it.  I  think,  however, 
that  we  ought  to  hold  ourselves  bound  by  the  last  of  these  two 
cases,  holding  that  the  word  "vendor"  is  insufficient,  though,  as  far 
as  my  judgment  goes,  I  can  see  no  distinction  between  the  nature 
of  the  memorandum  in  either  case.  I  think  that  the  description 
which  should  enable  us  to  dispense  with  the  actual  names  of  the 
parties  ought  to  be  very  precise  and  exact,  and  that  in  neither  of 
the  cases  was  this  requirement  complied  with.  To  allow  so  general 
a  description  to  satisfy  the  statute  seems  to  me  to  lead  to  all  the 
mischief  which  it  was  intended  to  prevent,  and  I  think  that  no  de- 
scription ought  to  be  held  sufficient  except  where  it  identifies  the 
party  without  the  necessity  of  resorting  to  parol  evidence.  How- 
ever, it  is  unnecessary  to  consider  whether  these  cases  were  or 
were  not  rightly  decided,  for  I  think  that  the  defendant  is  entitled 
to  our  judgment  on  two  grounds.  The  main  object  of  the  inter- 
pleader issue  is  to  ascertain  whether  the  £yo  belongs  to  one  or 
other  of  the  two  parties,  and  the  case  in  Beavan's  Reports,  Casson 
V.  Roberts,  31  Beav.  613,  32  L.  J.  Ch.  105,  where  it  was  held  that  a 
contract  under  similar  circumstances  could  not  be  enforced,  is,  I 
think,  distinguishable,  in  spite  of  some  strong  expressions  of  Lord 
RoMiLLY.  Here,  there  are  two  answers  to  the  claim  to  have  the 
money  paid  back  to  the  vendee.  First,  on  the  face  of  these  condi- 
tions of  sale  it  is  obvious  that  the  plaintiff  paid  the  deposit  knowing 
at  the  time  that  the  name  of  the  defendant  did  not  appear  on  the 
memorandum  of  agreement  otherwise  than  as  "the  vendor."  She 
voluntarily  paid  the  £70,  with  full  knowledge  that  the  vendor's  name 
was  not  disclosed  on  the  contract,  and  so  far  accepted  the  descrip- 
tion as  sufficient.  Under  these  circumstances,  I  think  she  cannot 
recover  back  the  money. 


92 


BENEFITS    CONFERRED    UNDER    CONTRACT, 


Secondly,  under  the  fourth  condition  of  sale^  "the  vendor  shall, 
within  seven  days  from  the  day  of  sale,  deliver  to  the  purchaser  or 
his  solicitor  an  abstract  of  title  to  the  property  purchased  by  him, 
subject  to  the  stipulations  contained  in  the  conditions.  And  the 
purchaser  shall,  within  seven  days  from  the  delivery  of  the  abstract, 
deliver  to  the  vendor's  solicitor  a  statement  in  writing  of  his  ob- 
jections and  requisitions  (if  any)  to  or  on  the  title  as  shown  by 
such  abstract,  and  upon  the  expiration  of  such  last-mentioned  time 
the  title  shall  be  considered  as  approved  of  and  accepted  by  the  pur- 
chaser, subject  only  to  such  objections  and  requisitions  (if  any), 
and  time  shall  be  deemed  to  be  as  of  the  essence  of  this  condition, 
as  well  in  equity  as  at  law."  Now,  what  did  the  plaintiff  do?  If 
she  had  intended  to  insist  on  her  right  to  rescind  the  contract  on  the 
ground  that  the  memorandum  was  insufficient,  it  was  her  duty  to 
send  back  the  abstract,  saying,  "Why  do  you  send  this  to  me?" 
She,  however,  does  not  send  it  back,  but  keeps  it,  and  her  solicitors 
write  this  letter:  "Dear  Sirs, — Without  prejudice  to  any  question 
which  may  arise  as  to  the  contract  of  purchase  herein,  we  beg  to 
name  Tuesday  next,  at  two  o'clock,  to  examine  abstract  of  title 
with  deeds,  on  behalf  of  Mrs.  Thomas." 

Now  I  cannot  conceive  anything  more  unlikely  than  that  a  so- 
licitor would  allow  his  client's  title-deeds  to  be  examined  while  there 
was  a  doubt  as  to  the  validity  of  the  contract  of  sale.  But  the  plain- 
tiff's solicitors  proceed  to  examine  the  abstract,  and  learn  from  it 
the  name  of  the  vendor.  Then  they  keep  the  abstract  in  their  pos- 
session, as  if  the  only  question  which  could  arise  was  as  to  the  title, 
and  write  a  letter  inclosing  requisitions  as  to  the  title,  putting  at 
the  foot  of  the  requisitions  the  words,  "The  above  requisitions  are 
made  without  prejudice  to  any  question  that  may  arise  as  to  the 
contract  for  the  purchase  of  the  premises."  I  take  the  word  "ob- 
jection" to  mean  any  unforeseen  objection  to  the  title  which  the 
plaintiff's  solicitors  did  not  wish  to  be  taken  to  have  waived.  The 
requisitions  are  returned  with  answers,  the  correspondence  goes 
on,  and  finally,  on  the  9th  of  July,  the  defendant's  solicitor  writes 
that  he  has  been  informed  that  the  plaintiff  does  not  intend  to  com- 
plete her  purchase,  and  that  if  this  be  true  he  shall  take  proceed- 
ings.   To  this  the  plaintiff's  solicitors  reply  repudiating  the  contract. 

Now  I  feel  no  doubt  that  the  case  comes  within  the  rule  laid  down 
in  Cornish  v.  Abington,  4  H.  &  N.  549;  28  L.  J.  Ex.  262,  that,  "if 
any  person  by  actual  expressions,  or  by  a  course  of  conduct,  so  con- 
ducts himself  that  another  may  reasonably  infer  the  existence  of  an 
agreement  or  license,  and  acts  upon  such  inference,  whether  the 
former  intends  that  he  should  do  so  or  not,  the  party  using  that 
language  or  who  has  so  conducted  himself,  cannot  afterwards 
gainsay  the  reasonable  inference  to  be  drawn  from  his  words  or 
conduct."     T  think  this  is  an  express  authority  which  quite  justifies 

'  This  condition  was  not  set  out  in  this  case,  but  a  copy  of  the  conditions 
was  by  consent  referred  to  during  the  argument. 


STATUTE   OF    FRAUDS.  93 

US  in  holding  that  it  docs  not  he  in  the  mouth  of  the  vendee,  who 
has  accepted  a  contract  hke  this,  afterwards  to  object  to  it.  For 
this  reason  I  think  we  cannot  say  that  the  contract  is  invaUd. 

Then  there  is  a  second  answer.  In  an  action  hke  the  present, 
for  money  had  and  received,  the  plaintiff  can  only  recover  money 
paid  without  knowledge  of  the  real  facts — in  ignorance  of  facts 
which,  if  they  had  been  known,  would  have  left  the  plaintiff  an  op- 
tion whether  she  would  pay  or  not.  The  rule  is  laid  down  by 
Patteson,  J.,  in  Duke  of  Cadaval  v.  Collins,  4  A.  &  E.  858,  that 
money  paid  under  compulsion  of  law  cannot  be  recovered  back  as 
money  had  and  received ;  and,  further,  "where  there  is  bona  fides 
and  money  is  paid  with  full  knowledge  of  the  facts,  though  there 
be  no  debt,  still  it  cannot  be  recovered  back."  It  is  unnecessary  to 
allude  to  the  difference  between  ignorance  of  the  law  and  ignorance 
of  the  facts.  Now,  is  there  anything  unconscientious  in  the  defend- 
ant keeping  this  money?  I  can  see  nothing.  The  breaking  ofif 
of  the  agreement  was  not  in  any  sense  the  fault  of  the  vendor.  He 
was  always  ready  and  willing  to  complete  the  purchase  and  execute 
a  conveyance,  but  the  vendee  chooses  to  set  up  this  question  about 
the  statute  of  frauds,  and  to  say,  "Although  I  can  have  the  contract 
performed  if  I  please,  I  repudiate  it."  Under  these  circumstances, 
I  think  it  would  be  quite  monstrous  if  the  plaintiff  could  recover, 
and  I  am  glad  to  think  that  the  authorities  are  all  opposed  to  her 
claim, 

OuAiN,  J. — I  am  of  the  same  opinion.  I  do  not  propose  to  dis- 
cuss the  cases  which  have  been  cited ;  I  will  merely  say  that  I  have 
great  difficulty  in  reconciling  the  two  decisions  of  the  master  of  the 
rolls.  But  I  decide  this  cause  on  the  ground  that  it  is  an  action  by 
an  unwilling  vendee  against  a  willing  vendor,  and  that  it  cannot  be 
said  that  the  consideration  has  failed  so  as  to  entitle  the  plaintiff  to 
recover.  By  the  tenth  paragraph  of  the  case  it  appears  that  the  de- 
fendant has  always  been  ready  and  willing  to  assign  the  purchased 
property  to  the  plaintiff  in  pursuance  of  the  contract ;  in  short,  to 
give  the  plaintiff  all  that  was  bargained  for.  Now  where,  upon  a 
verbal  contract  for  the  sale  of  land,  the  purchaser  pays  the  deposit 
and  the  vendor  is  always  ready  and  willing  to  complete,  I  know  of  no 
authority  to  support  the  purchaser  in  bringing  an  action  to  recover 
back  the  money.  Secondly,  we  must  consider  the  peculiar  position 
of  the  parties  as  disclosed  by  the  correspondence.  It  appears  that 
after  the  purchaser  received  the  abstract  the  solicitors  examined  it 
with  the  deeds  and  made  requisitions.  These  were  acts  which  as- 
sumed that  a  contract  existed,  and  yet  the  plaintiff  now  proposes 
to  take  proceedings  upon  the  footing  that  there  was  no  contract  at 
all.  It  will,  no  doubt,  be  said  that  everything  was  done  "without 
prejudice  to  any  question  which  might  arise  as  to  the  contract  of 
purchase,"  and  that  this  reservation  having  been  assented  to,  the 
defendant  is  bound  by  it.  But,  in  my  opinion,  the  words  "without 
prejudice  to  any  question  which  may  arise"  mean  any  question  in 
the  execution  of  the  contract,  and  not  any  question  as  to  the  exist- 


^\ 


94  BENEFITS    CONFERRED    UNDER    CONTRACT. 

ence  of  the  contract.  I  think  that  no  soHcitor  would  understand 
the  plaintiff  as  reserving  any  question  as  to  the  existence  of  the  con- 
tract. Under  such  circumstances  the  plaintiff  is  not  entitled  to  re- 
cover the  deposit.  With  regard  to  the  case  of  Casson  v.  Roberts, 
31  Beav.  613 ;  32  L.  J,  Ch.  105,  I  do  not  think  that  it  has  much  bear- 
ing upon  the  present  question,  but  I  must  say  that  I  do  not  think  the 
reasons  upon  which  it  proceeded  are  satisfactory. 

Judgment  for  the  defendant. 


PHILBROOK  v.  BELKNAP. 

6  Vt.  383.— 1834- 

Action  on  book  account. 

Plaintiff  orally  contracted  to  work  for  defendant  for  three  years 
at  $8  per  month,  but  he  was  to  receive  no  wages  if  he  left  (except 
in  case  of  sickness)  before  the  end  of  the  three  years.  At  the  end 
of  five  and  one-half  months  plaintiff  wilfully  quit  defendant's 
service. 

Phelps,  J. — *  *  *  If  the  plaintiff  be  entitled  to  recover  at  all, 
the  claim  becomes  a  mere  claim  for  services  at  a  fixed  monthly  com- 
pensation.    *     *     * 

It  is  argued,  however,  that  the  contract  is  void,  by  force  of  the 
statute  of  frauds.  Admitting  that  this  contract  is  within  the  terms 
of  the  statute,  yet  it  may  be  well  to  inquire,  what  is  the  effect  of 
the  statute  upon  it.  Although  it  is  common  to  speak  of  a  contract 
as  void  by  the  statute  of  frauds,  yet,  strictly  speaking,  the  statute 
does  not  make  the  contract  void,  except  for  the  purpose  of  sustain- 
ing an  action  upon  it,  to  enforce  it.  The  statute  provides  that  no 
action  shall  be  sustained  upon  certain  contracts,  unless  they  are 
evidenced  by  writing.  It  operates,  therefore,  upon  the  contract 
only  while  it  is  executory.  It  does  not  make  the  performance  of  such 
a  contract  unlawful,  but,  if  the  parties  choose  to  perform  it,  the  con- 
tract remains  in  full  force,  notwithstanding  the  statute,  so  far  as 
relates  to  the  legal  effect  and  consequences  of  what  has  been  done 
under  it.  Hence  a  party  may  always  defend  under  such  a  con- 
tract, when  sued  for  any  act  done  under  it.  Thus,  suppose  a  crop 
of  grass  is  sold  by  parole,  and  the  vendee  enters  upon  the  land  and 
cuts  it.  If  an  action  of  trespass  should  be  brought  against  him,  by 
the  vendor,  upon  the  ground  that  the  contract  was  void,  still  al- 
though the  contract  is  within  the  statute,  it  would  furnish  a  sufficient 
defence,  because  it  is  executed.  This  very  case  affords  an  illustra- 
tion of  the  effect  of  the  statute.  If  the  defendant  had  sued  the  plain- 
tiff for  not  performing  the  contract,  in  not  serving  the  full  period, 
the  case  would  be  open  to  a  defense  under  that  statute :  the  con- 
tract being,  to  the  purposes  of  such  a  suit,  executory,  and  the  at- 


STATUTE   OF    FRAUDS. 


>^ 


tempt  being  to  sustain  an  action  on  it  as  such.  But  in  this  case,  the 
contract,  so  far  as  the  service  has  been  performed,  is  executed,  and 
is  rehed  on  as  ret^ulating  and  determining  the  right  of  the  plaintiff 
to  compensation  for  what  has  been  done  under  it.  We  are  here 
concerned  only  with  what  has  been  done.  The  question  is,  what 
the  plaintiff  is  entitled  to  for  his  labor ;  and  this  depends  upon  the 
terms  of  the  contract  under  which  he  performed  the  service.  Had 
the  whole  service  been  performed,  the  rate  of  compensation  would, 
without  doubt,  be  regulated  by  the  terms  of  the  contract.  No  court 
would  discard  that  contract,  and  resort  to  a  quantum  meruit.  The 
principle  is  the  same  as  to  a  performance  in  part.  The  defendant 
may  be  without  remedy  for  the  desertion  of  the  plaintiff,  but  he  may 
certainly  protect  himself  as  to  what  has  been  done.    *    *    *    * 


ABBOTT  V.  DRAPER. 
4  Den.  (N.  Y.)  51.— 1847. 

Error  to  Columbia  C.  P.  The  parties  joined  issue  before  a  justice 
of  the  peace,  Abbott  being  plaintiff,  and  Draper  defendant.  The 
declaration  was  for  goods  sold  and  delivered,  and  the  money  counts : 
plea,  the  general  issue.  The  cause  was  tried  in  December,  1843. 
The  case  was  this:  In  October,  1842,  the  defendant  agreed  to  sell 
the  plaintiff  a  strip  of  land  about  six  feet  wide  and  running  back 
to  the  water,  for  the  sum  of  $60 ;  one-half  of  which  the  plaintiff 
was  to  pay  in  money  and  the  other  half  in  goods  out  of  his  store. 
The  goods  were  to  be  delivered  immediately,  as  they  might  be 
called  for.  by  the  defendant.  The  money  payment  was  to  be  made  in 
July,  1843,  upon  receiving  which  the  defendant  was  to  give  a  deed. 
The  contract  was  reduced  to  writing;  but  was  never  signed  by  the 
parties.  The  plaintiff  took  possession  and  occupied  the  land  ;  and 
delivered  goods  to  the  defendant  in  pursuance  of  the  contract  to  the 
value  of  $23.57.  Upon  this  state  of  facts  the  plaintiff  brought  this 
action  in  December,  1843,  to  recover  the  value  of  the  goods.  The 
jury  found  a  verdict  for  the  defendant,  on  which  the  justice  rendered 
judgment,  which  the  C.  P.  affirmed  on  certiorari.  The  plaintiff 
brings  error. 

Bronson,  Ch,  J. — As  the  writing  which  was  prepared  was  not 
signed,  there  was  nothing  more  than  a  parol  contract  for  the  sale 
of  the  land,  which  was  void  by  the  statute  of  frauds.  But  still  the 
parties  have  acted  under  the  contract  as  though  it  were  valid ;  and 
the  plaintiff  has  received  a  benefit  from  it.  He  entered  into  the 
possession  and  enjoyment  of  the  land ;  and  there  is  nothing  to  show 
that  he  is  not  still  in  possession.  It  would  be  strange  indeed  if  he 
could  recover  in  this  action  on  the  ground  that  the  contract  was  void  ; 
while  he  continues  to  receive  advantage  from  it  as  a  valid  agreement. 


96  BENEFITS    CONFERRED    UNDER    CONTRACT. 

He  cannot  thus  treat  the  contract  as  both  g-ood  and  bad  at  the  same 
moment.     Honesty  and  fair  deahng  forbid  it. 

Although  the  statute  declares  a  parol  contract  for  the  sale  of  lands 
void,  it  does  not  make  it  illegal.  It  is  not  a  corrupt  or  wicked 
agreement ;  nor  does  it  violate  any  principle  of  public  policy.  Parties 
are  at  liberty  to  act  under  such  contracts  if  they  think  proper. 
IMany  such  have  been  carried  into  complete  effect,  by  payment  of  the 
price,  and  conveyance  of  the  land.  Part  performance  does  not  take 
the  case  out  of  the  statute,  so  that  the  contract  can  be  enforced  in  a 
court  of  law.  But  when  the  vendee  has  received  the  possession  and 
paid  a  part  of  the  price,  the  contract  is  not  so  utterly  void  that  he 
can  recover  back  the  money  just  as  though  there  had  never  had 
been  an  agreement.  If  he  can  recover  at  all  so  long  as  the  vendor 
is  not  in  the  wrong,  he  must,  at  the  least,  first  restore  the  possession, 
and  demand  the  repayment  of  the  money.  It  is  impossible  to  main- 
tain that  he  can  retain  the  possession,  and  yet  recall  the  money.  And 
though  he  has  never  had  the  possession,  or  any  other  benefit  under 
the  contract,  yet  as  he  did  not  part  with  his  money  as  a  loan,  but  as 
a  payment,  he  cannot  recover  it  back  without  first  demanding  it 
from  the  vendor,  and  giving  him  notice  that  the  contract  is  aban- 
doned. When  a  man  has  paid  money  as  due  upon  contract  to  another 
and  there  is  no  mistake,  and  no  fraud  or  other  wrong  on  the  part 
of  the  receiver,  there  is  no  principle  upon  which  it  can  be  recovered 
back,  until  after  a  demand  has  been  made.  It  cannot  be  right  to 
subject  a  man  to  an  action  for  money  which  was  received  as  his 
just  due,  before  he  has  had  notice  that  he  who  paid  it  has  changed 
his  mind,  and  intends  to  repudiate  the  obligation  under  which  the 
payment  was  made. 

But  the  difficulty  lies  still  deeper  than  this.  So  long  as  the  vendor 
is  not  in  default,  but  is  ready  to  perform  the  contract  on  his  part, 
I  see  no  principle  on  which  the  vendee  can  recall  the  payments 
which  he  has  made  under  the  agreement.  It  was  adjudged  that  he 
could  not,  in  Dowdle  v.  Camp,  12  John.  451 ;  and  although  there  are 
some  loose  expressions  in  the  books  looking  the  other  way,  none  of 
the  cases  maintain  a  dift'erent  doctrine.  When  the  vendor  refuses 
to  go  on  with  the  contract,  or  has  parted  with  his  title  so  that  he 
cannot  perform,  he  is  then  in  the  wrong;  and  having  himself  put 
an  end  to  the  contract,  there  is  no  longer  any  consideration  for  the 
payments  which  have  been  made  under  it ;  and  the  law  will  imply  a 
promise  to  restore  the  money.  But  how  can  the  law  imply  a  promise 
to  refund  the  money  so  long  as  the  vendor  is  not  in  default?  The 
payment  was  a  voluntary  one,  made  with  a  full  knowledge  of  all  the 
facts.  Every  time  a  payment  was  made  and  received,  the  parties 
virtually  said,  although  the  law  will  not  enforce  this  contract,  we 
will  go  on  and  carry  it  into  effect.  The  money  is  not  received  as 
a  loan,  but  as  a  payment :  and  so  long  as  the  vendor  is  able  and  will- 
ing to  perform  the  contract  on  his  part,  he  holds  the  money  as 
owner,  and  not  as  a  debtor.     The  consideration  upon  which  the 


STATUTE   OF    FRAUDS.  97 

money  was  paid  has  not  failed,  and  tlicre  is  nothing  from  which  a 
promise  to  repay  can  be  justly  implied.' 

In  this  case,  the  plaintiff  was  let  into  possession  of  the  land,  and, 
for  aught  that  appears,  he  has  the  possession  still.  He  is  in  default 
for  not  making  the  money  payment  which  was  due  in  July,  1843  5 
while  there  has  been  no  wrong  whatever  on  the  part  of  the  de- 
fendant. So  as  far  as  appears,  he  is  able  and  willing  to  convey  on  re- 
ceiving the  balance  of  the  price.  The  defendant  did  not  receive  the 
goods  in  question  as  a  debtor,  but  as  a  payment,  and  the  considera- 
tion upon  which  they  were  delivered  has  not  failed.  Before  the 
plaintiff  can  recover  their  value  he  must  put  the  defendant  in  the 
wrong  by  tendering  the  balance  of  the  purchase  money  and  de- 
manding a  deed. 

Should  it  be  admitted  that  the  vendee  can  repudiate  the  contract 
without  any  default  on  the  other  side,  still  he  must  give  notice  to  the 
vendor  that  the  contract  is  abandoned,  and  demand  a  return  of  the 
money  paid,  before  he  can  sue  to  recover  it.  Any  other  rule  would 
be  plainly  unjust  toward  the  vendor.  And  yet  that  is  the  very  thing 
which  has  been  done  by  this  plaintiff.  After  having  made  payments 
under  the  contract  from  time  to  time,  he  stopped  short  and  brought 
this  suit,  without  ever  having  told  the  defendant  that  he  had  changed 
his  mind,  or  demanded  payment  for  the  goods  which  had  been  de- 
livered.   This  is  not  fair  dealing,  and  the  law  will  not  sanction  it. 

Judgment  affirmed.^ 


KING  v.  WELCOME. 

5  Gray  41.— 1857. 

'Thomas,  J. — This  was  an  action  of  contract  on  a  quantum  mcndf, 
for  labor  done  by  the  plaintiff  for  the  defendant.  The  amount  and 
value  of  the  plaintiff's  services  were  not  disputed,  but  the  defendant 
relied  upon  an  express  contract  by  which  the  plaintiff  was  to  work 
for  an  entire  year,  and  a  breach  of  such  contract  by  wrongfully 
leaving  the  plaintiff's  service  before  the  year  expired.  That  con- 
tract was  not  in  writing.  By  its  terms,  the  plaintiif  was  to  labor 
for  one  year  from  a  day  future.  The  plaintiif  said  that  contract  was 
within  the  statute  of  frauds,  and  could  not  be  set  up  in  defense  to 
the  action.    So  the  court  ruled. 

^Accord,  Collier  v.  Coatcs,  17  Barb.  471  (1854)  ;  Hoskins  v.  Mitcheson,  14 
Upper  Can  Q.  B.  551  (1857). 

^Section  1183  of  the  Cal.  Code  of  Civ.  Pro.  provides  that  certain  building 
contracts  shall  be  "wholly  void,"  etc.,  unless  in  writing  and  filed  for  record. 
As  to  the  efifect  of  failure  to  comply  with  this  requirement  upon  the  right  to 
recover  in  quasi-contract  for  benefits  conferred,  see  Laidlaw  v.  Marye,  133 
Cal.  170  (1901). 

Woodruff's  Cases — 7 


98  BENEFITS    CONFERRED    UNDER    CONTRACT, 

Rightly,  we  think  ;  though,  in  the  hght  of  the  authorities,  the 
question  is  a  nice  and  difficuU  one. 

Upon  the  reason  of  the  thing,  and  looking  at  the  ohject  and  pur- 
pose of  the  statute,  the  result  is  clear.  So  far  as  it  concerns  the 
prevention  of  fraud  and  perjury,  the  same  objection  lies  to  the  parol 
contract,  whether  used  for  the  support  of,  or  in  defense  to  an  ac- 
tion. The  gist  of  the  matter  is,  that,  in  a  court  of  law,  and  upon  im- 
portant interests,  the  party  shall  not  avail  himself  of  a  contract  rest- 
ing in  words  only,  as  to  which  the  memories  of  men  are  so  imperfect, 
and  the  temptations  to  fraud  and  perjury  so  great. 

The  language  of  our  statute  is,  that  "no  action  shall  be  brought 
upon  any  agreement  that  is  not  to  be  performed  within  one  year 
from  the  making  thereof,  *  *  *  unless  the  promise,  contract,  or 
agreement  upon  which  such  action  shall  be  brought,  or  some  memo- 
randum or  note  thereof,  shall  be  in  writing,  and  signed  by  the  party 
to  be  charged  therewith,  or  by  some  person  thereunto  by  him  law- 
fully authorized."   Rev.  Sts.,  c.  74,  §  i,  CI.  5. 

Looking  at  the  mere  letter  of  the  statute,  the  suggestion  is  ob- 
vious, that  no  action  is  brought  upon  this  contract.  But  the  de- 
fendant seeks  to  "charge  the  plaintiff  therewith,"  to  establish  it  by 
proof,  to  enforce  it  in  a  court  of  law,  and  to  avail  himself  of  its 
provisions.  And  if  the  defense  succeeds,  the  plaintiff  is  in  effect 
charged  with  and  made  to  suffer  for  the  breach  of  a  contract  which 
he  could  not  enforce,  and  which  could  not  be  enforced  against  him. 

The  difference,  it  is  clear,  is  not  one  of  principle.  To  illustrate 
this,  let  us  suppose  that  in  the  contract,  which  the  defendant  seeks 
to  set  up  in  defense,  there  had  been  a  provision  for  the  payment  of 
the  wages  stipulated,  by  semi-annual  instalments.  If,  upon  the  ex- 
piration of  the  six  months,  the  plaintiff'  had  brought  an  action  upon 
the  contract  to  recover  the  instalment,  the  action  could  not  be  main- 
tained ;  the  statute  of  frauds  would  be  a  perfect  defense.  This  is 
settled  in  the  recent  case  of  Hill  v.  Hooper,  i  Gray  131.  But  if  in 
an  action  brought  for  money  lent  or  goods  furnished  to  himself  or 
family,  he  may  avail  himself  of  the  instalment,  by  way  of  set-off  or 
payment ;  the  difference  is  merely  one  of  form,  and  not  of  substance. 

Still  further,  upon  the  construction  of  the  statute  contended  for 
by  the  defendant,  the  laborer  in  the  contract  stated  would  be  without 
remedy.  For  if  he  brought  his  action  upon  the  contract  for  the  in- 
stalment, the  statute  of  frauds  would  be  a  bar ;  if  upon  a  quantum 
meruit,  the  express  contract  to  labor  for  a  year  would  be  a  bar. 

The  sounder  construction  of  the  statute,  we  think,  is  that  a  con- 
tract within  its  provisions  is  one  which  neither  party  can  enforce  in 
a  court  of  law.  Carrington  v.  Roots,  2  M.  &  W.  248;  Reade  v. 
Lamb,  6  Exch.  130;  Comes  v.  Lamson,  16  Conn.  246.  The  cases  in 
the  exchequer  go  fartber  than  is  necessary  to  sustain  the  rule  stated. 
They  hold  tbe  contract,  as  a  contract,  is  void,  because  it  is  a  con- 
tract of  which  a  party  cannot  avail  himself  in  a  court  of  law.  Upon 
this  point  the  recent  case  of  Lcroux  v.  Brown,  12  C.  B.  801,  is  in 
conflict  with  them. 


STATUTE   OF    FRAUDS.  99 

This  court  has  not  treated  the  contracts  as  absokUely  void.  When 
fully  executed,  they  define  and  measure  the  rights  of  the  parties 
thereto.  And  if  this  contract  had  been  fully  executed,  and  the  plain- 
tiff had  earned  the  price  stipulated,  and  had  then  brought  quantum 
meruit  on  the  ground  that  his  services  were  reasonably  worth  more, 
the  contract  so  executed  would  have  been  a  full  answer.  Stone  v. 
Dennison,  13  Pick.  i.  But  this  contract  was  not  performed;  it  was, 
to  a  great  extent,  executory.  For  breach  of  it  by  the  defendant,  no 
action  could  be  maintained  by  the  plaintiff.  Nor,  by  parity  of  rea- 
son, can  the  plaintiff's  breach  of  it  be  set  up  to  defeat  his  reasonable 
claim  for  services  rendered. 

But  though  a  contract  within  the  statute  of  frauds,  as  a  contract, 
cannot  be  enforced  in  a  court  of  law,  it  may  be  available  for  some 
purposes. 

A  parol  contract  for  the  sale  of  land,  though  not  enforceable  as 
a  contract,  may  operate  as  a  license  to  enter  upon  the  land,  and,  until 
revoked,  be  a  good  answer  to  an  action  of  trespass  by  the  OAvner. 

So  where  money  has  been  paid  upon  a  parol  contract  for  the  sale 
of  land,  it  cannot  be  recovered  back,  if  the  vendor  is  willing  to  ful- 
fil the  contract  on  his  part.  This  is  settled  in  the  recent  case  of 
Coughlin  v.  Knowles,  7  Met.  57,  a  case  which  certainly  resembles 
the  one  at  bar,  but  which  may  be  clearly  distinguished  from  it.  That 
action  rests  upon  an  implied  assumpsit.  The  implied  promise  arises 
only  upon  the  failure  of  the  consideration  upon  which  the  money  was 
paid.  The  plaintiff  fails  to  show  any  failure  of  consideration.  He 
shows  the  money  was  paid  upon  a  contract*  not  void,  and  which  the 
defendant  is  ready  to  perform.  The  consideration  upon  which  it 
was  paid  exists  unimpaired.  If  the  defendant  had  refused  to  con- 
vey, or  if,  as  in  the  case  of  Thompson  v.  Gould,  20  Pick.  134,  the 
property  had  been  destroyed  by  fire,  so  that  the  contract  could  not 
be  performed  by  the  vendor,  there  would  be  a  feilure  of  considera- 
tion, from  which  an  implied  promise  would  arise,  and  the  action 
could  be  maintained. 

In  the  case  at  bar,  the  plaintiff  shows  services  rendered  for  the 
defendant,  and  their  reasonable  value.  The  defendant,  admitting 
the  performance  of  the  labor  and  its  value,  says  the  plaintiff  ought 
not  to  recover,  because  he  made  an  entire  contract  for  a  year,  which 
he  has  not  fulfilled.  The  plaintiff  replies,  that  contract  was  for 
work  for  a  year  from  a  day  future ;  it  was  within  the  statute  of 
frauds ;  it  was  not  in  writing ;  it  was  not  executed,  and  cannot  be 
used  in  a  court  of  law,  either  as  the  basis  of  an  action,  or  to  defeat 
a  claim  otherwise  just  and  reasonable. 

In  the  case  of  the  money  paid  upon  a  contract  for  the  sale  of 
land,  the  action  fails  because  no  failure  is  shown  of  the  considera- 
tion from  which  the  implied  promise  springs. 

In  the  case  at  bar,  the  defense  fails  because  the  contract  upon 
which  the  defendant  relies  is  not  evidenced  as  the  statute  requires 
for  its  verification  and  enforcement.  For  it  is  the  whole  contract 
of  which  the  defendant  seeks  to  avail  himself.     His  defense  is  not 


lOO  BENEFITS    CONFERRED    UNDER    CONTRACT. 

that  as  to  so  much  as  is  executed,  as  to  so  much  time  as  the  plain- 
tiff has  labored,  he  labored  under  the  contract,  and  the  price  stipu- 
lated is  to  govern.  But  he  relies  upon  the  contract,  not  only  so  far 
as  it  is  executed,  but  so  far  as  it  is  still  executory.  He  seeks  first 
to  establish  the  parol  agreement  as  a  valid  subsisting  contract,  and 
then  to  charge  the  plaintiff  with  a  breach  of  it. 

A  construction  of  the  statute  which  would  sanction  this  use  of 
the  contract,  would  lose  sight  of  the  obvious  purposes  of  the  stat- 
ute. It  would  adhere  to  the  letter  at  the  expense  of  the  spirit.  It 
would  operate  unequally  upon  the  parties.  The  weight  of  authority 
is  against  it.  Exceptions  overruled.^ 


Coleman,  J.,  in  NELSON  v.  SHELBY  MANUFACTURING 

COMPANY. 

96  Ala.  515,  526.— 1892-93. 

In  many  English  cases,  and  in  some  of  the  states,  it  is  held  that 
money  paid  on  a  purchase  of  land  cannot  be  recovered  back,  if  the 
vendor  is  able  and  willing  to  carry  out  the  contract  of  sale,  although 
he  may  be  under  no  legal  obligation  to  perform.  We  are  of  opin- 
ion that  this  principle  has  never  prevailed  in  this  state.  In  Flinn 
V.  Barber  [64  Ala.  193],  it  is  said  that  the  validity  of  the  con- 
tract does  not  depend  upon  the  willingness  or  election  of  the  vendor, 
but  upon  the  sufficiency  of  the  written  note  or  memorandum  of  the 
contract  of  sale,  subscribed  by  him,  to  make  it  obligatory'upon  him, 
or  upon  such  a  part  performance  by  the  vendee,  as  to  remove  the 
contract  from  the  operation  of  the  statute  of  frauds,  so  that  it  be- 

Mn  Riley  v.  Williams,  123  Mass.  506  (1878)  the  action  was  brought  upon  a 
quantum  meruit  and  the  evidence  tended  to  show  a  special  contract,  not  in 
writing,  by  which  the  plaintiff  agreed  to  do  certain  work  for  the  defendant, 
and  to  receive  in  payment  therefor  a  lot  of  land,  to  be  selected  by  him  out  of 
a  number  of  lots  owned  by  the  defendant,  and  blacksmith's  work  to  a  stated 
amount  from  a  firm  of  blacksmiths ;  and  that  the  plaintiff,  after  perform- 
ing the  labor,  refused  to  accept  payment  as  stipulated  in  the  contract.  The 
court  said:  "Under  the  instructions  given,  the  jury  must  have  found  that, 
although  the  services  as  claimed  by  the  plaintiff  were  actually  rendered,  yet 
he  had  agreed  that  he  should  be  paid  in  the  manner  stipulated  in  an  executory 
contract  which  the  defendants  arc  ready  and  able  to  perform.  If  he  was  to  be 
paid  partly  in  a  lot  of  land  belonging  to  the  female  defendant,  and  partly  in 
blacksmith's  work  to  be  furnished  1)y  Cameron  &  Emerson,  and  the  jury  were 
satisfied  that  the  defendants  were  ready  and  willing  at  all  times  to  convey  the 
land  at  its  fair  market  value  and  Cameron  &  Emerson  were  always  ready  to 
furnish  the  blacksmith's  work  for  him  when  called  for  at  agreed  or  reasonable 
prices,  it  is  not  for  the  plaintiff  to  object  that  this  special  contract  was  not 
binding  because  it  was  not  in  writing.  Tt  was  wholly  immaterial  that  no  ac- 
tion coiild  be  maintained  on  this  special  contract,  because  it  was  not  reduced 
to  writing,  if  the  defendants  were  ready  and  willing  at  all  times  to  carry  it 
into  full  effect.  The  plaintiff  cannot  force  the  defendants  to  take  their  stand 
upon  the  statute.  Coughlin  v.  Knowles,  7  Met.  57.  Wethcrbee  v.  Potter,  99 
Mass.  354,  .361." 


/ 


STATUTK    OF   FRAUDS.  lO' 

came  mutually  bindin*:::.  We  find  nothing  in  the  earlier  or  present 
statutes  of  frauds  which  supports  the  conclusion  that  a  contract  not 
enforceable  against  a  vendor  as  provided  in  the  former,  or  which 
is  declared  void  as  to  him  by  the  present  statute,  because  there  is  no 
sufficient  written  note  or  memorandum  of  the  agreement  to  comply 
with  its  mandates,  subscribed  by  him,  and  which  affords  the  vendor 
complete  protection  against  his  vendee,  may,  by  his  election  or  will- 
ingness to  perform,  avoid  the  statute,  and  convert  a  contract  it  de- 
clares void  into  a  valid  agreement,  enforceable  against  a  vendee,  who 
has  subscribed  no  note  or  memorandum  of  the  agreement,  and 
has  done  no  more  than  pay  a  part  of  the  purchase-money.  In  such 
a  case  neither  party  is  bound,  and  the  contract  is  void  by  the  terms 
of  the  statute  itself.  A  contract  void  under  the  statute  of  frauds 
is  void  for  all  purposes.^ 


IMPROVEMENTS. 

LONG  v.  FINGER. 
74  N.  C.  502.— 1876. 

This  was  a  civil  action,  in  the  nature  of  ejectment. 

Rodman,  J. — The  plaintiff  has  the  legal  title  to  the  land  in  con- 
troversy, and  is  therefore  admittedly  entitled  to  recover  unless  the 
defendant  has  some  equity  to  restrain  him.  The  defendant  alleges 
that  the  plaintiff  by  parol  agreed  to  convey  the  lot  to  him  on  the 
payment  of  $150;  that  he  thereupon  entered  into  possession  and 
put  up  improvements  to  the  value  of  $150;  he  admits  that  he  has 
never  paid  the  plaintiff  the  purchase  money  and  is  unable  to  do  so. 
He  contends  that  he  ought  to  be  allowed  the  value  of  his  improve- 
ments, or  at  least  that  the  premises  be  sold  and  any  excess  they  may 
bring  over  the  purchase  money,  and  damages  for  withholding  the 
possession,  and  the  costs  of  this  action,  may  be  paid  to  him. 

It  may  be  observed  that  although  the  contract  was  originally  by 
parol  and  could  not  be  enforced,  yet  as  the  plaintiff  in  his  replica- 
tion acknowledges  the  contract  and  offers  to  perform  his  part  of  it 
on  performance  by  the  defendant,  the  defendant  does  not  need  any 
decree  of  a  court  to  give  him  that  relief.  It  is  competent  for  him  to 
sell  his  estate  in  the  premises,  and  if  he  can  obtain  for  them  a  price 
in  excess  of  the  just  demands  of  the  plaintiff,  the  excess  will  be  his, 
unless  the  plaintiff  will  have  in  that  event  a  right  to  tack  on  his 
subsequent  loan  of  $100.  As  no  case  is  before  us  calling  for  any 
opinion  as  to  the  plaintiff's  right  in  that  respect,  we  express  none. 
If  the  defendant  cannot  sell  his  estate  in  the  premises  subject  to 
the  plaintiff's  claim,  for  anything,  the  inference  is  clear  that  al- 

*  Accord.  Scott  v.  Bush.  26  Mich.  418  (1873),  29  Mich.  523  (1874)  ;  Koch  v. 
William?,  82  Wis.  186  (1892). 


102  BENEFITS    CONFERRED    UNDER    CONTRACT. 

though  his  improvements  have  cost  him  something,  they  have  added 
nothing  to  the  value  of  the  lot. 

Beyond  the  remedy  indicated,  the  defendant  has  no  equity  or  title 
to  relief.  He  relied  in  the  argument  on  the  case  of  Albea  v.  Griffin, 
2  Dev.  &  Bat.  Eq.  9,  and  others,  to  the  efifect  that  if  a  vendee  by 
parol  paid  part  of  the  purchase  money,  or  entered  and  made  im- 
provements, although  he  could  not  enforce  a  specific  performance 
on  the  ground  of  part  performance,  yet  the  vendor  would  not  be 
allowed  to  turn  him  out  without  repaying  what  of  the  purchase- 
money  had  been  paid  and  making  compensation  for  the  improve- 
ments. Obviously  the  present  case  does  not  stand  on  the  same  foot- 
ing. Here  the  vendor  does  not  set  up  the  statute  of  frauds,  but 
waives  it,  and  is  both  willing  and  able  to  comply.  The  defendant 
alone  is  in  default.  There  is  no  error  and  the  plaintiff  is  entitled 
to  judgment  for  the  possession  of  the  premises  on  the  plead- 
ings.    *     *     *     * 

Per  Curiam.  Judgment  affirmed,  with  costs  to  the  plaintifif  in 
this  court.^ 


MASSON  V.  SWAN,  adm'x,  et  al. 
6  Heisk.  (Tenn.)  450. — 1871. 

Nicholson,  Ch.  J. — In  May,  1857,  William  Swan  agreed  to  sell 
to  Paul  Masson  a  vacant  lot  in  Knoxville  for  $600.  The  agreement 
was  in  parol,  no  note  given  for  the  purchase  money,  and  no  time 
fixed  for  its  payment,  and  no  written  memorandum  of  the  terms  of 
sale.  Masson  took  possession  of  the  lot  and  proceeded  to  make 
permanent  improvements  upon  it  by  erecting  buildings  thereon  for 
a  residence.  From  the  25th  of  December,  1857,  to  the  25th  of  De- 
cember, i860,  he  occupied  the  premises  as  a  residence.  No  pay- 
ment on  the  purchase  money  was  made,  and  no  application  to  Swan 
for  a  title.    Swan  died  in  March,  1859. 

The  bill  was  filed  May  2,  i860,  making  no  tender  of  purchase 
money,  and  asking  for  no  execution  of  the  contract  by  title  from  the 
heirs  of  Swan,  but  assuming  that  the  contract  was  void  because  not 
reduced  to  writing,  and  claiming  compensation  for  the  permanent 
improvements  to  the  amount  of  the  enhanced  value  of  the  property, 
setting  off  against  such  the  rents,  after  deducting  the  amounts 
paid  for  taxes  and  insurance.    The  widow  of  William  Swan,  as  his 

'  Accnrrl,  Farnam  v.  Davis.  32  N.  H.  302  (1855),  in  an  action  of  assumpsit 
for  improvements.  Tn  Hawkins  v.  Real,  4  Dana  (Ky.)  5  (1836),  the  vendee 
filed  a  bill  in  equity  to  recover  the  value  of  improvements.he  having  defaulted 
upon  the  oral  contract  and  been  evicted.  The  court  said :  "Had  it  clearly 
appeared  that  the  non-execution  of  the  contract  was  attributable  altogether 
lo  his  wilful  delinquency  or  fault  we  should  be  indisposed  to  concede  to  him 
any  right  in  equity  to  any  compensation  whatever."  But  it  not  being  cleat 
that  the  vendee's  default  was  wilful  he  was  allowed  to  recover. 


STATUTE    OF    FRAUDS.  IO3 

administratrix,  and  his  heirs,  were  made  defendants.  The  heirs 
answered — ^those  who  were  adults  answering-  for  themselves,  and 
those  who  were  minors  by  their  regular  guardian,  the  service  of 
process  on  them  being  waived  by  him.  By  reference  to  the  clerk 
and  master  the  amount  of  the  enhanced  value  of  the  lot  was  ascer- 
tained, to  which  was  added  the  amount  of  taxes  and  insurance  paid, 
and  from  the  aggregate  sum  the  amount  of  the  rents  was  deducted. 
For  the  balance  a  decree  was  rendered,  and  an  order  of  sale  of  the 
lot  for  its  satisfaction. 

Both  sides  have  appealed.     *     *     *     * 

It  is  said  that  there  is  no  equity  in  the  bill,  and  that  complainant 
has  no  right  to  the  aid  of  a  court  of  equity  to  enable  him  to  rescind 
the  contract.  By  the  recent  decisions  of  this  state  the  contract  of 
sale  was  not  absolutely  void,  but  voidable  upon  the  election  of  either 
party.  Roberts  v.  Francis,  2  Heis.  128.  Swan,  the  vendor,  did  not 
elect  to  avoid  the  contract,  nor  did  his  heirs  after  his  death.  Com- 
plainant made  no  tender  of  the  purchase  money,  and  could  not 
claim  a  title  until  he  had  done  so.  He  rested  upon  the  parol  con- 
tract, made  the  improvements,  and  occupied  the  property  as  his 
own  under  the  parol  contract  until  May  2,  i860,  when  he  elected 
to  avoid  the  contract  and  claim  compensation  for  his  improvements. 
He  had  the  right  to  make  his  election,  and  as  the  improvements 
were  made  under  a  subsisting  parol  contract,  he  had  the  right  to 
come  into  a  court  of  equity  to  have  his  claim  for  compensation  en- 
forced. The  equity  springs  from  the  fact  that  the  contract  is  not 
void  but  voidable,  and  that  either  party  has  the  right  to  avoid  it. 
Rhea  v.  Allison,  3  Head  176. 

The  equity  of  complainant  is  the  amount  of  the  enhancement 
of  the  value  of  the  lot  in  market,  resulting  from  the  permanent  im- 
provements made  upon  it;  this  value  to  be  estimated  at  the  time  he 
made  his  election  to  avoid  the  contract.  The  amounts  actually  ex- 
pended in  making  or  superintending  the  improvements  do  not  fur- 
nish the  criteria  for  ascertaining  the  enhanced  value,  though  they 
may  be  looked  to  as  legitimate  evidence  in  the  investigation.  But 
as  complainant  seeks  the  enforcement  of  an  equity,  he  is  bound  to 
do  equity ;  hence,  he  is  required  to  account  for  the  benefits  derived 
from  the  use  and  occupation  of  the  property.  As  he  elects  to  re- 
pudiate the  contract,  and  along  with  it  the  payment  of  the  purchase 
money,  equity  requires  him  to  account  for  reasonable  rents.  During 
the  occupation  of  the  lot  the  law  imposed  taxes  on  the  property. 
These  were  encumbrances,  for  the  removal  of  which  he  ought  to 
have  credit  upon  the  amount  of  the  rents.  But  the  insurance  paid 
upon  the  property  stands  on  a  different  footing.  He  insured  the 
property  voluntarily  and  for  his  own  protection,  and  while  he  was 
holding  and  treating  the  property  as  his  own.  We  see  no  equity 
in  allowing  him  a  credit  for  this  expenditure.  The  balance  due  to 
complainant  will  bear  interest  from  the  filing  of  the  bill. 

The  only  remaining  question  is  as  to  whether  the  enhanced  value 
should  be  paid  by  the  administrator  or  the  heirs?   It  cannot  be  re- 


^I04  BENEFITS    CONFERRED    UNDER    CONTRACT. 

garded  as  a  debt  against  tb.e  administrator.  The  liability  arose 
upon  the  election  of  complainant  to  avoid  the  contract,  and  it  is  a 
liability  arising  out  of  no  default  on  the  part  of  the  intestate  or  his 
administratrix.  For  all  we  can  see,  the  intestate  was  ready  at  any 
time  to  make  title  if  complainant  had  entitled  himself  to  it  by  ten- 
dering or  paying  the  purchase  money.  Not  electing  to  do  this  dur- 
ing the  lifetime  of  the  intestate,  and  only  making  his  election  to 
avoid  the  contract  after  the  legal  title  had  descended  to  the  heirs 
of  the  intestate,  at  which  time  his  equitable  claim  for  compensation 
came  into  existence,  we  think  it  clear  that  the  liability  attaches  to 
the  property  itself  out  of  which  it  sprimg,  and  that  it  cannot  be 
viewed  as  a  debt  of  the  estate  to  be  paid  by  the  administratrix.  The 
real  estate  and  not  the  personal  is  benefitted  by  the  improvement, 
and  equity  necessarily  fixes  the  liability  for  the  benefit  on  the  real 
estate. 

With  the  modifications  indicated  the  decree  of  the  chancellor  is 
affirmed.  The  heirs  will  have  four  months  with  which  to  pay  the 
amount  ascertained  to  be  due.  The  clerk  of  this  court  will  make 
report  of  the  amount  due  to  the  present  term.  The  costs  will  be 
paid  by  complainant.^ 


ii.    Defendant  in  Default. 

RICHARDS  v.  ALLEN. 

17  Me.  296.— 1840. 

Assumpsit  for  a  quantity  of  bricks  delivered  in  1829,  and  a  yoke 
of  oxen  delivered  January  27,  1832.  The  writ  was  dated  January 
2y,  1838.  Eighteen  or  twenty  years  before  the  commencement  of 
the  suit,  the  plaintiff  contracted  verbally  with  the  defendant  for  the 
purchase  of  a  farm,  and  entered  upon  the  farm  under  that  verbal 
contract,  and  lived  thereon  until  the  time  of  trial.  The  bricks  and 
the  oxen  were  delivered  at  the  respective  times  charged  in  part  pay- 
ment of  the  farm,  under  the  verbal  contract  for  the  purpose  thereof. 

Weston,  C.  J. — The  contract  between  the  parties  in  regard  to  the 
farm,  was  one,  which  being  by  parol,  could  not  be  enforced  at  law. 
It  was  however  morally  binding;  and  payments  made  by  the  plain- 
tiff on  account  of  the  purchase  could  not  be  reclaimed  so  long  as 
the  defendant  was  in  no  fault.  But  if  he,  without  any  justifiable 
cause,  repudiated  the  contract,  and  refused  to  be  bound  by  it,  a  right 
of  reclamation  would  accrue  to  the  plaintiff,  to  the  extent  required 

'  But  recovery  for  improvements  will  not  be  allowed  to  the  vendee  in  default, 
who  has  notice  that  the  vendor  was  opposed  to  the  improvements  beingr  made. 
Rainer  v.  Huddlcston,  4  Heisk.  (Tenn.)  223  (1871). 


STATUTE   OF    FRAUDS.  IO5 

by  the  principles  of  justice  and  equity.^  The  statute  of  Hmitations 
would  not  begin  to  run  until  the  cause  of  action  accrued. 

The  terms  of  the  contract  do  not  appear  in  evidence;  but  in  the 
spring  of  1837,  the  defendant  recognized  the  contract  as  a  subsist- 
ing one,  acknowledged  the  payment  of  half  the  amount  of  the  pur- 
chase, by  bricks  and  a  yoke  of  oxen,  and  promised  in  a  few  days  to 
give  the  plaintiff  or  his  son  a  deed  of  the  farm,  doubtless  upon  be- 
ing paid  or  secured  the  remainder  of  the  purchase  money.  On  the 
i8th  of  January  following  he  conveyed  the  farm  to  a  third  person. 
This  was  putting-  an  end  to  the  contract,  by  depriving  himself  of 
the  power  to  fulfil  it.  Was  he  justified  in  this  course  by  any  act 
or  failure  on  the  part  of  the  plaintifif?  Nothing  of  this  kind  was 
offered  in  proof  by  the  defendant,  except  the  declarations  made  by 
the  plaintiff  to  the  witness  Dickey.  That  was  a  casual  conversation, 
giving  no  authority  to  the  witness  to  make  any  communication  to  the 
defendant.  The  plaintiff  cannot  thereby  necessarily  be  understood 
to  have  waived  his  rights.  He  stated  that  he  had  no  interest  in  the 
land,  and  that  the  defendant  might  convey  it  to  whom  he  pleased. 
This  was  true,  if  understood,  as  it  may  be  of  legal  interest  on  the 
one  hand,  and  of  legal  power  on  the  other.  The  testimony  of 
Dickey  therefore,  if  received,  might  not  conclusively  affect  the  merits 
of  the  cause,  or  justify  the  conveyance  made  by  the  defendant,  with- 
out subjecting  him  to  a  right  of  reclamation  by  the  plaintiff. 

It  may  be  contended  that  this  right  could  not  be  exerted  until  the 
plaintiff  had  first  tendered  to  the  defendant  the  remainder  of  the 
purchase  money  and  thereupon  demanded  a  deed.  This  may  be 
true  if  the  defendant  had  not,  by  his  own  act,  deprived  himself  of 
the  power  of  fulfilment.  This  excuses  the  useless  ceremony  of 
tender  and  demand  which  might  otherwise  have  been  essential  to 
the  maintenance  of  the  action.  Newcomb  v.  Brackett,  16  Mass.  R. 
161. 

But  the  plaintiflF's  claim  must  be  limited  to  what  is  just  and  equita- 
ble under  all  the  circumstances.  He  had  made  some  payments ;  but 
he  had  enjoyed  the  farm  for  eighteen  or  twenty  years.  The  jury 
should  have  been  permitted  to  take  this  into  consideration,  even 
without  an  account  in  offset,  as  it  was  necessarily  connected  with 
the  plaintifif's  claim,  and  was  of  a  character  to  affect  and  qualify  it. 
This  not  having  been  done,  we  sustain  the  exceptions  and  grant  a 
new  trial. ^ 

*  Accord,  Bucki  v.  McKinnon,  y]  Fla.  .391  (1896),  where  a  statute  required 
agricultural,  lumbering,  etc.,  contracts  to  be  in  writing. 

''The  Measure  of  Recovery. — Dix  v.  Marcy,  116  Mass.  416  (1875).  Oral 
contract  by  plaintiff  to  convey  land  to  defendant  who  promised  support  to 
plaintiff  and  family  in  return,  and  to  give  a  mortgage  on  the  land  or  life  lease 
thereof  to  secure  performance.  Plaintiff  conveyed  the  land,  but  defendant 
after  performing  in  part,  broke  the  contract.  Plaintiff  can  recover  the  value 
of  the  land  conveyed,  less  the  value  of  defendant's  part  performance.  And 
see  also.  Miller  v.  Roberts,  169  Mass.  i.?4  C1897). 

In  Ham  v.  Goodrich,  Adm'r,  yj  N.  H.  185  (1857),  the  plaintiff  went  to  live 
with  defendant's  intestate  upon  the  farm  of  the  latter  under  an  oral  contract 


I06  ^  BENEFITS    CONFERRED    UNDER   CONTRACT. 

SMITH  V.  HATCH. 

46  N.  H.  146.— 1865. 

Indebitatus  assumpsit,  for  land  sold  and  for  money  had  and  re- 
ceived. The  plaintiff's  evidence  tended  to  show  that  the  plaintiff 
and  defendant  made  a  parol  agreement,  by  which  the  plaintiff  was 
to  convey  to  the  defendant  a  tract  of  wild  land  in  part  payment  for 
a  farm  which  the  defendant  was  to  convey  to  plaintiff ;  that  the  de- 
fendant was  to  allow  $125  for  the  wild  land  in  part  payment  for 
the  farm,  and  that  if  he  should  get  more  than  $125  by  sale  of  the 
wild  land,  he  was  to  allow  what  he  should  get ;  that  plaintiff  had 
conveyed  the  wild  land  to  defendant,  but  defendant  had  not  con- 
veyed the  farm  to  plaintiff  according  to  the  parol  agreement ;  that 
the  defendant  had  sold  the  wild  land  and  received  some  money  for 
it.  The  defendant  moved  for  a  nonsuit,  on  the  ground  that  indebi- 
tatus assumpsit  would  not  lie.  The  court  overruled  the  motion  and 
defendant  excepted.  The  defendant  moved  to  set  aside  the  verdict 
which  was  for  plaintiff.  The  questions  arising  in  the  case  were  re- 
served. 

Sargent,  J. — It  is  to  be  assumed  that  all  proper  instructions  were 

that  his  farm  should  be  conveyed  to  the  plaintiff  from  and  after  the  death  of 
defendant's  intestate.  Plaintiff  fully  performed,  but  defendant's  intestate 
failed  to  perform.  The  court  said,  upon  the  measure  of  recovery:  "The  re- 
covery of  the  plaintiff  being  founded  upon  the  general  counts,  and  upon  them 
alone,  the  instructions  of  the  court  that  what  he  received  from  the  farm  as  he 
went  along  might  be  applied  in  payment  for  his  services,  were  correct.  What 
did  he  reasonably  deserve  to  have,  under  all  the  circumstances,  was  the  ques- 
tion. The  actual  services  performed  by  himself  and  family;  the  circumstances 
under  which  he  went  to  reside  there;  the  board  of  the  defendant's  intestate; 
the  income  of  the  farm  received  by  the  plaintiff,  and  the  board  of  himself  and 
family;  all  these  matters,  and  others  that  might  be  suggested,  were  to  be 
considered  by  the  jury  in  deciding  what  the  plaintiff  was  justly  entitled  to 
and  should  receive." 

In  Day  v.  N.  Y.  C.  R.  R.  Co.,  51  N.  Y.  583  (1873),  Earl,  C,  says : /Tn  con- 
sideration of  the  conveyance  of  the  land  to  the  defendant,  it  was  to  give  to  the 
plaintiff  at  his  yards  and  pens  the  business  of  temporarily  keeping  and  feeding 
all  the  stock  which  should  be  transported  upon  its  road  eastward  from  Niagara 
River.  Hence  we  must  assume,  for  the  purposes  of  the  appeal,  that  the  parol 
agreement,  as  testified  to  by  the  plaintiff,  was  established.  We  imust  also  as- 
sume that  ihis  agreement  was  void  under  the  statute  of  frauds,  for  such  is  the 
claim  on  the  part  of  the  defendant,  and  it  was  upon  this  theory  alone  that  the 
recovery  was  based,  and  upon  it  alone  the  plaintiff  seeks  to  uphold  the  judg- 
ment. As  the  consideration  for  the  plaintiff's  land,  the  defendant  agreed  to 
pay  him  one  dollar  and  to  give  him  the  stock  business  at  his  yards.  It  paid 
him  the  one  dollar  and  gave  him  all  the  business  for  the  year  1855  and  part 
of  it  for  the  year  1856,  and  out  of  this  business  the  plaintiff  made  profits  to 
the  amoimt  of  about  $6,oo(5.  And  yet  he  brings  this  action  to  recover  the 
entire  value  nf  the  land  conveyed  by  him  on  the  ground  nf  a  total  failure  of 
the  con<;iderntion  of  his  conveyance.  A  mere  statement  of  the  case  shows  that 
the  action  must  be  without  foundation."  And  it  was  held  that  the  measure 
of  plaintiff's  recovery  should  be  the  value  of  the  land  he  conveyed,  less  the 
amount  of  profits  he  received  from  the  partial  performance  by  the  defendant. 


STATUTE    OF    FRAUDS.  IO7 

given  to  the  jury  upon  the  rj^uestion  of  the  rescission  of  contracts  and 
all  other  questions  arising  in  the  case,  and  that  the  verdict  for  plain- 
tiff was  properly  rendered  upon  the  evidence,  provided  the  action 
of  indebitatus  assumpsit  will  lie  upon  the  facts  here  stated.  De- 
fendant claims  that  there  has  been  a  part  performance  by  plaintiff 
in  conveying  the  wild  land  to  defendant,  and  that  plaintiff  has  a 
remedy  by  bill  in  equity  to  enforce  a  specific  performance  of  the 
contract,  and  that  having  such  a  remedy  he  can  have  no  other.  But 
we  do  not  understand  such  to  be  the  law. 

In  Allen  v.  Webb,  24  N.  H.  278,  it  is  held  that  "where  one  party 
to  a  contract  refuses  to  perform  his  part  of  the  same,  the  other 
party  may  insist  upon  the  contract  being  carried  out,  or  he  may 
avail  himself  of  the  refusal  and  rescind  the  contract."  Without  con- 
sidering, therefore,  whether  the  part  performance  by  plaintiff  was 
such  as  to  take  the  case  out  of  the  statute,  and  enable  him  to  enforce 
a  specific  performance  on  the  part  of  defendant,  we  think  that  if 
such  were  the  admitted  fact,  the  plaintiff  might  elect  his  remedy,  and 
either  enforce  the  contract  or  rescind  it  and  recover  back  the  value 
of  the  land  he  had  conveyed.  If  the  defendant  had  not  sold  this 
land,  the  count  for  money  had  and  received  could  not  have  been 
maintained,  though  the  count  for  land  sold  would  then  have  been 
well  enough.  But  the  plaintiff  may  now,  by  adopting  the  act  of  sell- 
ing on  the  part  of  defendant  and  ratifying  the  same,  recover  the 
money  which  defendant  received  for  the  land  under  the  count  for 
money  had  and  received. 

A  verdict  may  therefore  have  been  properly  returned  for  plain- 
tiff on  either  count  in  his  declaration.  The  defendant  has  no  cause 
of  complaint  and  the  exceptions  are  overruled.  See  Stevens  v. 
Gushing,  i  N.  H.  18;  Lane  v.  Shackford,  5  N.  H.  130;  Child  v. 
Moore,  6  N.  H.  33 ;  Fuller  v.  Little,  7  N.  H.  535 ;  Luey  v.  Bundy, 
9  N.  H.  298;  Ayer  v.  Hawkes,  11  N.  H.  148;  Snow  v.  Prescott,  12 
N.  H.  535 ;  Gillet  v.  Maynard,  5  Johns.  85  ;  Merrill  v.  Downs,  41 
N.  H.  72. 

Judgment  on  the  verdict.^ 

'  Does  the  Existence  of  the  Equitable  Remedy  of  Specific  Performance 
Debar  Plaintiff  From  a  Quasi-Contractual  Action? — In  Reynolds  v. 
Reynolds,  74  Vt.  463  (1902),  plaintiff,  who  was  defendant's  brother,  worked 
on  defendant's  farm  under  an  oral  contract  whereby  defendant  was  to  convey 
plaintiff  an  interest  in  the  farm.  Defendant  broke  the  contract  and  plaintiff 
sued  for  his  labor.  The  court  said :  "The  defendant  suggests  that  in  any 
event  the  plaintiff  ought  not  to  recover  in  this  action  because  he  might  have 
enforced  specific  performance  in  equity, — that  the  plaintiff's  living  and  working 
upon  the  farm,  and  having  the  place  set  in  the  tax  list  to  himself  and  his 
brother  jointly,  and  paying  one-half  the  taxes,  amounted  to  taking  possession, 
and  was  a  part  performance  that  would  have  avoided  the  effect  of  the  statute 
of  frauds.  We  have  not  considered  whether  the  plaintiff  was  in  a  position 
to  have  sought  relief  in  equity,  for  if  he  was,  the  defendant  cannot  take 
advantage  of  that.  The  contract  was  not  one  for  the  breach  of  which  the 
plaintiff  could  sue  at  law,  for  it  was  not  in  writing,  but  he  still  had  this  action 
for  the  value  of  his  services.  If  there  was  an  equitable  relief  also,  it  was  for 
the  benefit  of  the  plaintiff,  not  of  the  defendant,  who  cannot  insist  that  he 


''108  BENEFITS    CONFERRED    UNDER    CONTRACT. 


GAY  V.  MOONEY. 
d^  N.  J.  L.  27. — 1901. 

Dixon,  J. — The  defendant's  intestate  was  the  uncle  of  the  plain- 
tiff's wife,  and  for  several  years  before  his  death  resided  in  the 
plaintiff's  family.  In  the  present  suit  the  plaintiff  sought  to  recover 
compensation  for  the  board  and  lodging  furnished  to  the  deceased. 

In  order  to  rebut  a  presumption  that  the  service  was  rendered 
and  received  as  a  gratuity,  the  plaintiff  put  in  evidence  tending  to 
show  an  understanding  between  himself  and  the  deceased  that  the 
latter  would  devise  a  certain  dwelling  house  to  the  plaintiff's  chil- 
dren in  return  for  what  he  should  receive  as  a  member  of  the  fam- 
ily. For  such  a  purpose  this  evidence  was  plainly  legitimate.  It 
came  within  the  rule  laid  down  in  Disbrow  v.  Durand,  54  N.  J. 
Law  343,  24  Atl.  545,  33  Am.  St.  Rep.  678,  that  in  cases  like  the 
present  a  reasonable  and  proper  expectation  that  there  would  be 
compensation  must,  and  hence  may,  be  shown.  The  bargain  thus 
exhibited  is  not  one  on  which  an  action  at  law  could  be  maintained, 
because  it  related  to  land,  and  was  not  susceptible  of  such  proof  as 
the  statute  of  frauds  requires ;  but  when,  in  pursuance  of  a  bargain 
for  this  reason  unenforceable,  services  have  been  rendered,  the 
legal  remedy  is  by  an  action  on  the  quantum  meruit  for  the  value 
of  the  services.  McElroy  v.  Ludlum,  32  N.  J.  Eq.  828.  As  was 
said  in  Stone  v.  Todd,  49  N.  J.  Law  274,  281,  8  Atl.  300,  the  in- 
tended devise  was  but  the  method  of  paying  an  admitted  obligation, 
and,  if  payment  in  that  manner  be  not  made,  the  creditor  is  entitled 
to  recover  the  value  of  the  services. 

Although  the  bargain  between  the  plaintiff  and  the  intestate 
contemplated  payment  to  be  made  to  the  plaintiff's  children,  and  not 
directly  to  himself,  yet,  as  that  bargain  did  not  take  the  form  of  an 
actionable  contract,  it  falls  out  of  view  as  a  ground  of  legal  remedy, 
and  appears  only  to  give  color  to  the  conduct  of  the  parties  in  fur- 
nishing and  accepting  the  service  rendered.  It  affords  the  means 
of  determining  that  the  service  was  not  a  gift,  but  a  sale,  and  out  of 
that  determination  the  law  deduces  a  right  in  him  who  sold  the  serv- 
ice to  be  paid  its  value  by  him  who  bought  it.  These  principles 
sufficiently  answer  the  important  exceptions  taken  at  the  trial  and 
all  the  exceptions  mentioned  in  the  brief  of  counsel.  The  other  ex- 
ceptions, therefore,  need  not  be  noticed. 

The  judginent  of  the  Middlesex  pleas  is  affirmed. 

should  be  compelled  to  do  what  he  has  been  asked  to  do  and  has  refused. 
That  one  has  an  adequate  remedy  at  law  may  be  a  reason  why  equity  should 
not  hear  his  prayrr,  hut  that  he  miRht  have  claimed  relief  in  equity  is  no 
reason  why  he  should  not  have  his  usual  remedy  at  law.  The  plaintiff  should 
recover,  then,  what  his  labor  was  worth." 


STATUTE   OF    FRAUDS.  IO9 

WILLIAMS  V.  BEMIS,  Executor. 

108  Mass.  91.— 1871. 

Contract  for  work  done  and  materials  furnished  in  cultivating 
the  land  of  Harolin  Towne,  the  defendant's  testator.  Trial  in  the 
superior  court,  before  Scudder,  J.,  who,  before  verdict,  by  consent 
of  the  parties,  made  a  report  of  the  case,  of  which  the  material  parts 
were  as  follows : 

"The  plaintiff  testified  that  the  work  was  done  and  the  materials 
used  by  him  upon  the  land  of  Towne  under  Towne's  general  direc- 
tion. On  cross-examination  he  testified,  against  his  own  objection, 
that  before  he  began  the  work  Towne  said  he  might  take  the  land 
for  one  year  and  plant  it  with  potatoes,  and  he  would  furnish  one- 
half  the  seed  and  the  necessary  dressing,  and  give  the  plaintiff  two- 
thirds  of  the  crop ;  that  the  plaintiff  declined  to  take  the  land  for 
one  year  upon  the  terms  named,  telling  Towne  that  the  labor  and 
seed  to  be  furnished  by  him  would  cost  more  than  he  could  get 
for  it  the  first  year ;  but  that  he  told  Towne  he  would  take  the  land 
and  do  the  work  on  it  for  two  years  for  two-thirds  of  the  crop  for 
two  years,  the  plaintiff*  to  furnish  one-half  of  the  seed  and  all  the 
labor,  and  Towne  all  the  manure,  and  phosphate  if  necessary,  and 
Towne  assented ;  that  the  work  named  in  the  declaration  was  done 
under  the  contract  during  the  first  year ;  that  at  the  expiration  of 
the  first  year  the  crop  of  that  year  was  divided  according  to  the  con- 
tract, the  plaintiff  taking  two-thirds  and  Towne  one-third  thereof; 
that  Towne  then  refused  to  allow  the  plaintiff  to  plant  the  land  the 
second  year;  and  that  the  work  done  and  seed  furnished  and  used 
upon  the  land  by  the  plaintiff  during  the  first  year  was  more  than 
was  necessary  for  the  first  year's  crop,  and  of  greater  value  than 
the  plaintiff's  share  of  that  crop,  and  inured  to  the  permanent  bene- 
fit of  the  land,  and  of  the  crop  for  the  second  year,  as  was  under- 
stood and  anticipated  by  the  parties  when  the  contract  was  entered 
into  and  the  work  was  done  and  the  seed  used  upon  the  land." 

If  upon  this  testimony  the  plaintiff  was  to  recover  anything  be- 
yond the  crop  already  received  by  him,  then  judgment  was  to  be 
entered  for  the  plaintiff  for  the  sum  of  $53.25,  otherwise  judgment 
to  be  entered  for  the  defendant. 

Ames,  J. — *  *  *  *  ^j^g  defendant  insists  that  the  work  was 
done  by  the  plaintiff  in  the  cultivation  of  crops  which  were  to  be 
partly  his  own,  and  was  not  done  upon  the  credit  of  Towne,  or 
with  any  expectation  of  charging  it  against  him.  Such  undoubtedly 
was  the  understanding  of  the  parties  originally.  But  as  Towne  saw 
fit  to  say  that  the  special  contract  was  not  binding  upon  him,  it 
cannot  be  set  up  by  his  executor  as  binding  upon  the  plaintiff.  King 
V.  Welcome,  5  Gray  41.  It  cannot  be  treated  as  a  nullity  for  one 
purpose,  and  as  a  contract  for  another.  It  required  two  years  for 
its  completion,  and  both  parties  understood  that  there  was  to  be 


^ 


no  BENEFITS    CONFERRED    UNDER    CONTRACT. 

no  profit  or  advantage  to  the  plaintiff  except  from  the  operations 
of  both  years  taken  together.  A  large  part  of  the  labor  and  ex- 
pense incurred  in  the  first  year,  had  no  reference  whatever  to  the 
operations  and  results  of  that  year,  taken  by  itself,  but  were  a  prepa- 
ration of  the  land  for  increased  productiveness  in  the  second  year. 
The  plaintiff  must  be  considered  as  having,  in  that  way,  paid  in 
advance,  in  part  at  least,  for  the  privilege  of  using  the  land  the  sec- 
ond year  in  the  manner  agreed  upon.  By  the  repudiation  of  the 
contract,  he  has  lost  the  privilege  which  he  had  so  paid  for.  The 
consideration  upon  which  he  made  that  payment  has  failed  by  the 
wilful  act  of  the  other  party  to  the  contract,  and  he  is  therefore  en- 
titled to  recover  back  what  he  has  so  paid.  Basford  v.  Pearson,  9 
Allen  387.  If  it  had  been  a  payment  in  money,  it  would  be  too  plain 
to  be  controverted.  A  payment  in  labor  and  services,  of  which  the 
other  has  secured  the  benefit,  stands  upon  the  same  ground. 

Judgment  for  the  plaintiff  for  the  sum  agreed. 


BANKER  V.  HENDERSON. 

58  N.  J.  L.  26.-1895. 

Reed,  J. — This  action  was  brought  to  recover  the  value  of  the 
labor  and  materials  expended  by  the  plaintiff  in  making  a  wood 
chopper.  It  appeared  in  evidence  that  the  plaintiff  verbally  agreed 
to  furnish  to  the  defendant  a  boiler,  engine,  saw,  and  wood  chopper, 
for  the  sum  of  $450.  The  engine  and  boiler  were  then  in  existence, 
but  the  saw  and  the  chopper  were  to  be  made.  They  were  all  to  be 
used  together,  and  the  price  was  entire.  The  defendant  refused  to 
receive  them,  and  on  account  of  his  refusal  they  were  never  de- 
livered. On  the  trial,  upon  an  objection  interposed  by  the  counsel 
for  the  defendant  that  this  parol  agreement  was  within  the  statute 
of  frauds,  the  trial  court  ruled  that  this  was  so  in  respect  to  the 
boiler  and  engine,  which  were  in  existence  when  the  agreement  was 
made.  The  court  also  ruled  that  the  contract  was  entire,  and  not 
severable,  and  therefore  the  whole  was  within  the  statute.  Never- 
theless the  court  permitted  the  plaintiff  to  prove  the  value  of  his 
labor  expended  by  him  in  building  the  chopper,  and  also  the  value 
of  the  material  used  for  that  purpose.  The  jury  was  charged  that 
it  could  return  a  verdict  for  this  amount,  which  amount  the  jury 
assessed  at  $278.71.  To  this  charge  the  defendant  took  an  excep- 
tion. The  result  of  this  is  that  the  title,  not  only  to  the  engine  and 
the  boiler,  but  to  the  wood  chopper,  upon  which  this  labor  and  ma- 
terial were  expended,  remains  in  the  plaintifl",  while  the  defendant, 
who  receives  no  benefit  whatever  from  it,  pays  for  all  this  which 
went  to  the  enhancement  of  the  plaintiff's  property,  or  rather  to  the 
creation  of  property  for  the  plaintiff. 


STATUTE   OF    FRAUDS.  Ill 

The  theory  upon  which  the  ric^^ht  to  recover  for  labor  or  materials 
furnished  under  a  void  contract  rests  is  that  one  person  has  received 
such  a  benefit  as  would  raise  an  implied  assumpsit  on  his  part  to  pay 
for  it,  and  that  his  failure  to  perform  his  side  of  the  contract  gives 
a  right  of  action  against  him  upon  this  implied  assumpsit.  In  Afc- 
Elroy  V.  Ludlum.  32  N.  J.  Eq.  828,  services  as  superintendent  had 
been  actually  rendered  in  the  business  of  the  firm  under  an  agi"ec- 
ment  invalid  because  of  the  statute.  In  Mayor  v.  Pyne,  3  Bing, 
285,  under  a  void  agreement  to  deliver  twenty-four  numbers  of  a 
periodical  work,  eight  numbers  had  been  delivered.  Upon  refusal 
of  defendant  to  take  the  rest,  there  was  a  recovery  for  the  eight 
actually  received.  In  Shute  v.  Dorr,  5  Wend.  204,  a  parent  bargained 
to  receive  $100  for  the  services  of  his  child  from  the  ages  of  sixteen 
to  twenty-one  years.  He  was  permitted  to  recover  on  quantniit 
meruit  for  the  services  actually  rendered,  the  contract  being  void 
under  the  statute.  Indeed,  in  every  case  in  which  a  recovery  has 
been  permitted  on  the  common  counts  under  these  conditions,  there 
has  been  money  advanced  under  the  contract,  or  labor  or  materials 
furnished  for  the  benefit  of  defendant  or  his  property.  Lockwood 
v.  Barnes,  3  Hill  128;  Gray  v.  Hill,  Ryan  &  M.  420;  WilHams  v. 
Bemis,  108  Mass.  91.  Thus,  if  one  puts  improvement  upon  land 
which  he  occupies  as  vendee,  under  a  verbal  agreement  for  a  deed 
or  devise,  on  failure  of  the  other  party  to  carry  out  the  unenforce- 
able agreement  he  cannot  recover  the  value  of  such  improvements. 
The  reason  is  that  the  improvements  were  not  made  at  the  special 
instance  or  request  of  the  vendor,  nor  for  his  benefit.  Where,  how- 
ever, the  improvements  were  put  on  at  the  special  instance  of  the 
defendant,  and  for  the  benefit  of  his  estate,  an  action  lies.  Smith 
v.  Smith,  28  N.  J.  Law  208.  The  rule  is  illustrated  in  the  case  of 
Dowling  v.  McKenney,  124  Mass.  478.  There  was  a  parol  agree- 
ment that  plaintiff  would  finish  a  monument  to  order,  and  was  to 
take  in  pay  a  lot  of  land  and  some  cash.  He  completed  the  monu- 
ment, which  defendant  refused  to  accept.  In  an  action  brought  for 
the  value  of  the  labor  and  materials  supplied  in  completing  the 
monument  the  right  to  sue  was  disallowed.  The  court  said :  "It  is 
true  that,  when  a  person  pays  money,  or  renders  services,  or  makes 
a  conveyance  under  an  agreement  within  the  prohibition  of  the  stat- 
ute of  frauds,  and  the  other  party  refuses  to  perform  it,  an  action 
will  lie  to  recover  the  money  so  paid,  or  the  value  of  the  services 
rendered,  or  the  property  conveyed ;  but  it  is  on  the  ground  that 
a  party  who  has  received  a  benefit  under  an  agreement  which  he  has 
repudiated  shall  be  held  to  pay  upon  an  implied  assumpsit  for  that 
which  he  has  received.  The  defendant  received  no  benefit  from  the 
labor  performed  in  completing  the  monument,  although  the  plain- 
tiff may  have  suffered  a  loss."  Had  this  wood  chopper  been  de- 
livered, or  had  work  been  done  upon  defendant's  ground  by  which 
some  benefit  accrued  to  defendant's  property,  the  case  would  pre- 
sent a  different  aspect,  for  then  the  value  of  such  work  or  materials 
to  the  defendant  would  be  recoverable.    But  in  this  case,  as  in  the 


112  BENEFITS    CONFERRED    UNDER    CONTRACT. 

preceding,  the  title  to  the  completed  articles  remaining-  in  the  plain- 
tiff, no  benefit  whatever  accrued  to  the  defendant.  The  judgment 
is  reversed,  and  a  venire  de  novo  awarded. 


JOSEPH  S.  SMITH  v.  THE  ADMINISTRATORS  OF  JOHN 

S.  SMITH. 

4  Dutch.  (N.  J.)  208. — 1860. 

The  declaration,  besides  several  special  counts,  contained  the  ordi- 
nary common  counts. 

Chief  Justice. — The  contract  proved  upon  the  trial  of  this  case, 
or  which  the  evidence  tended  to  prove,  was  clearly  within  the  stat- 
ute of  frauds  and  perjuries.  It  was  a  contract  for  the  transfer  of 
an  interest  in  land.  The  plaintiff,  who  was  tenant  from  year  to 
year  of  his  father  (the  defendant's  intestate),  erected  new  build- 
ings upon  the  demised  premises  upon  the  authority  of  his  father, 
who  told  the  plaintiff  "to  go  on  and  build,  and  the  farm  should  be 
his,"  or,  as  another  witness  testified,  "to  go  on  and  fix  what  he  had 
a  mind  to — he  had  left  it  to  him."  The  evidence  in  the  cause  would 
have  warranted  the  jury  in  finding  that  the  plaintiff  erected  the 
buildings  with  the  consent  and  approbation  of  his  father,  upon  his 
express  promise  that  the  farm  should  be  his  upon  his  father's  death, 
by  deed  or  devise.  The  contract  to  transfer  the  land,  being  within 
the  statute  of  frauds,  was  void,  and  cannot  form  the  foundation  of 
an  action.  The  plaintiff,  therefore,  clearly  could  not  sue  upon  the 
special  contract. 

May  the  jury  lawfully  infer  a  promise  to  pay  for  the  improve- 
ments in  money  out  of  the  personal  estate  of  the  deceased?  It  is 
clear,  from  the  evidence,  that  the  erection  of  the  buildings  was  not 
a  voluntary  service,  nor  a  service  rendered  relying  upon  the  gener- 
osity of  the  intestate  to  make  compensation.  The  son  expressly  re- 
fused to  proceed  with  the  buildings  till  he  had  his  father's  promise 
that  the  farm  should  be  his.  The  case,  therefore,  does  not  fall 
within  the  familiar  principle,  that  no  promise  can  be  implied  to  pay 
for  gratuitous  services  or  services  rendered  in  expectation  of  a 
legacy.  Grandin  v.  Reading,  2  Stock.  370 ;  Johnson  v.  Hubbell,  2 
Stock.  332;  Jacobson  v.  Ex'rs  of  Le  Grange,  3  Johns.  199;  Martin 
v.  Wriglit,  13  Wend.  460;  Little  v.  Dawson,  4  Dall.  iii. 

But  will  the  law  raise  an  implied  promise  to  pay  money  when 
there  was  an  express  promise  to  pay  in  land?  The  answer  is,  that 
the  promise  to  pay  in  land  was  void,  and  therefore  no  promise.  If 
the  plaintiff  had  erected  the  buildings  upon  the  intestate's  land  at 
his  request,  the  law  would  have  implied  a  promise  to  pay  for  them. 
The  plaintiff  is  in  no  worse  situation  because  the  defendant  made  an 
express  promise  to  pay  for  the  services  in  a  particular  mode,  which 


STATUTE   OF   FRAUDS.  II3 

promise  is  itself  a  nullity.  The  true  principle,  says  Mr.  Chief  Jus- 
tice Nelson,  is  this :  "The  contract  being  void  and  incapable  of 
enforcement  in  a  court  of  law,  the  party  paying  the  money  or  ren- 
dering the  services  in  pursuance  thereof  may  treat  it  as  a  nullity, 
and  recover  the  money  or  the  value  of  the  services  rendered  under 
the  common  counts.  This  is  the  universal  rule  in  cases  where  the 
contract  is  void  for  any  cause  not  illegal,  if  the  defendant  be  in  de- 
fault."   King  V.  Brown,  2  Hill  486. 

The  principle  seems  to  be  perfectly  well  settled,  and  is  sustained 
by  very  numerous  authorities,  that  where  a  party  to  an  agreement 
void  by  the  statute  of  frauds  fails  to  execute  it,  the  price  advanced, 
or  the  value  of  the  article  delivered  in  part  performance  of  the  con- 
tract, whether  in  money,  labor,  or  chattels,  may  be  recovered  back. 
Mavor  v.  Pvne,  3  Bing.  285  ;  Gray  v.  Hill,  Ry.  &  M.  42 ;  Gillet  v. 
Maynard,  5  Johns.  R.  85,  and  cases  cited  in  note  a ;  Shute  v.  Dorr, 
5  Wend.  204;  Lock-wood  v.  Barnes,  3  Hill  128;  Abbott  v.  Draper, 
4  Den.  51. 

In  all  such  cases  the  law  raises  by  implication  a  promise  to  repay 
advances  made  upon  the  faith  of  the  contract,  and  for  which  no  con- 
sideration has  been  paid.  If,  as  a  consideration  for  the  improve- 
ment, the  intestate  had  agreed  to  devise  to  the  plaintiff  a  different 
tract  of  land  from  that  upon  which  the  improvement  was  made  the 
case  would  be  clear  of  difficulty.  But  as  the  improvement  is  made 
upon  the  farm  agreed  to  be  devised,  it  may  be  urged  that  the  im- 
provement was  made  not  for  the  benefit  of  the  intestate,  but  for 
the  plaintiff's  own  benefit,  inasmuch  as  he  resided  upon  the  farm 
during  his  life,  and  expected  to  receive  it  after  his  death.  It  is  true 
that  where  the  vendee  in  possession  under  a  parol  agreement  for 
the  purchase  of  land  makes  improvements  upon  the  premises  he 
cannot  recover  the  value  of  such  improvements  in  an  action  at  law, 
upon  the  refusal  of  the  vendor  to  fulfil  the  contract.  Gillet  v.  May- 
nard, 5  Johns.  85  ;  Shreve  v.  Grimes,  4  Littell  224.  The  improve- 
ments in  such  case  are  not  made  at  the  instance  or  request  of  the 
vendor,  nor  for  his  benefit,  but  for  the  benefit  of  the  party  making 
them.  The  law,  therefore,  will  imply  no  promise  by  the  vendor  to 
pay  for  them.  But  this  case  does  not  fall  within  that  principle.  The 
plaintiff  was  not  in  possession  under  a  contract  for  the  land,  but  as 
tenant  from  year  to  year  paying  rent.  The  improvements  inured 
to  the  benefit  of  the  intestate.  He  might,  upon  the  completion  of 
the  improvements,  have  turned  the  plaintiff  out  of  possession,  or 
demanded  and  received  an  increased  rent  for  the  premises  during 
his  life.  He  was  instrumental  in  having  the  improvements  made. 
The  plaintiff  refused  to  make  them  until  he  had  his  father's  promise 
that  the  land  should  eventually  be  his.  The  improvements  were  not 
only  made  by  the  procurement  of  the  intestate,  and  for  his  use.  but 
his  estate  has  actuallv  received  the  increased  value  of  the  improve- 
ments made  by  the  money  and  the  labor  of  the  plaintiff.  There 
seems  no  good  reason,  either  in  law  or  equity,  why  the  jury  may  not 
Woodruff's  Cases — 8 


114  BENEFITS    CONFERRED    UNDER    CONTRACT. 

infer  a  promise  to  pay  for  them.  If  it  be  objected  that  the  evidence 
in  the  cause  admits  of  a  different  interpretation,  and  that  the  terms 
of  the  contract  were  diiferent  from  those  above  stated,  the  answer 
is,  that  what  is  really  proved  by  the  evidence  was  a  question  of  fact, 
and  should  have  been  submitted  to  the  jury.     *     *     *     *i 


HAWLEY  V.  MOODY. 

24  Vx.  603. — 1852. 

Assumpsit.  Plea,  the  general  issue,  and  trial  by  the  court.  On 
trial,  the  plaintiff  gave  evidence  tending  to  prove,  that  on  the  nth 
day  of  July,  185 1,  he  contracted  with  the  defendant  for  a  lease  of 
the  defendant's  tavern-stand  in  Waterbury  (called  the  Waterbury 
House),  for  one  year  from  and  after  the  first  day  of  September, 
1851,  for  six  hundred  dollars;  and  paid  the  defendant  at  the  time 
one  hundred  dollars,  in  a  gold  watch,  which  defendant  received  as 
a  payment  of  one  hundred  dollars  toward  the  rent.  And  it  was 
further  stipulated  at  the  time,  that  the  parties  should  meet  at  Mr. 
Dillingham's  office  as  soon  as  he  returned  home  (he  being  absent 
that  day),  and  execute  a  written  lease.  The  contract  was  all  in 
parol.  The  plaintiff  called  upon  the  defendant  for  the  lease,  and  the 
defendant  soon  after,  on  the  same  day,  tendered  the  watch  back  to 
the  plaintiff,  which  the  plaintiff  refused  to  receive,  and  the  watch 
was  afterward  attached  by  one  of  the  plaintiff's  creditors,  and  sold 
on  execution  against  the  plaintiff.  The  defendant,  on  the  14th  day 
of  July,  185 1,  leased  the  same  premises  to  one  Howard  for  one  year, 
and  declined  to  lease  them  to  the  plaintiff.  The  plaintiff  tendered 
to  the  defendant,  on  the  first  day  of  September,  185 1,  five  hundred 
dollars  in  specie,  and  demanded  a  lease  of  the  premises,  according 
to  the  contract,  which  defendant  declined. 

The  county  court,  March  term,  in  Washington  county,  1852, 
Poland,  J.,  presiding,- — adjudged  that  plaintiff  could  not  recover, 
and  rendered  judgment  for  defendant.     Exceptions  by  plaintiff. 

Redfield,  J. — I.  The  statute  of  frauds  in  this  state  contains  no 
exception  of  leases,  or  contracts  for  leases  in  fiitnro,  as  is  found  in 
the  English  statute  and  in  some  of  the  other  states.  This  case  falls, 
therefore,  within  the  statute.     *     *     *     * 

4.  The  only  remaining  inquiry  then  is  as  to  the  effect  upon  the 
title  of  the  watch,  of  defendant's  refusal  to  complete  the  contract. 
If  this  were  to  be  regarded  like  the  case  where  one  is  induced  to 
purchase  property,  by  fraudulent  representations,  and  where,  upon 

'"If  the  plaintiffs,  in  consideration  of  an  agreement  which  was  within  the 
statute  of  frands,  and  wliich  the  defendant  declined  to  carry  out,  expended 
money  in  huilding  upon  his  land,  they  might  maintain  an  action  to  recover  the 
cost  of  such  building." — Parker  v.  Taintcr,  123  Mass.  185  (1877). 


STATUTE    OF    FRAUDS.  II5 

the  discovery  of  such  facts,  he  elects  to  rescind  the  contract,  as  he 
may,  then  the  property  would  revest.  But  here  is  no  fraud  in  the 
contract,  neither  is  it  the  object  of  the  statute  to  attach  to  this  class 
of  contracts  any  mark  of  reproach.  The  contract  is  innocent  enough, 
if  each  party  chooses  to  trust  to  the  honor  of  the  other  party  as  to 
its  performance.  If  that  were  not  so,  one  could  not  recover  for  pay- 
ments made  under  it.  The  contract  is  not  void,  or  affected  with  any 
taint  or  turpitude,  nor  is  it  rescindable  at  the  election  of  either  party. 

Either  party,  if  he  choose,  may  repudiate  it,  but  that  only  operates 
upon  so  much  of  the  contract  as  remains  executory  at  the  time,  and 
does  not  repeal  anything-  done  under  it.  For  these  purposes  it  re- 
mains in  full  force.  And  the  party  repudiating  must  be  content  to 
lose  what  he  has  done  under  it,  as,  the  contract  remaining  in  force, 
the  other  party  may  defend  Under  it.  But  if  the  party  repudiating 
the  future  performance  has  himself  received  advances  which  he  de- 
clines to  pay  for  in  the  mode  stipulated,  it  is  regarded  as  equitable 
that  he  should  refund  in  the  usual  mode  for  money  had  and  for 
goods  sold,  and  it  is  not  in  his  power  without  the  consent  of  the 
other  party,  to  revest  the  title  of  the  specific  things  received.  This 
seems  to  us  the  only  view  consistent  with  general  principles  appli- 
cable to  the  subject,  or  with  the  decided  cases,  and  manifestly  just 
and  equitable.  If  the  party  has  bought  goods  which  he  declines  to 
pay  for  in  the  mode  stipulated,  and  which  but  for  his  own  act  he 
might  do,  he  ought  and  he  must  be  content  to  pay  in  the  usual  mode 
of  paying  for  goods  sold  and  delivered,  and  this  recovery  may  be 
had  under  the  general  counts.  Gray  v.  Hill,  i  R.  &  M.  420 ;  Chitty 
on  Contracts  305. 

As  the  former  cases  upon  this  subject  have  adopted  no  principle 
at  all  analogous  to  allowing  either  party  the  power  of  rescission  of 
the  contract,  we  feel  reluctant  to  push  ourselves  upon  an  unexplored 
field,  without  some  obvious  and  pressing  necessity,  in  order  to  warp 
justice,  which  we  think  is  not  this  case.  By  the  adoption  of  this 
new  feature,  even  if  it  were  more  consonant  with  justice  in  the  par- 
ticular case,  which  we  think  it  clearly  is  not,  we  should  be  fearful 
of  ultimately  encountering  evils  which  are  not  apparent  at  the  mo- 
ment. And  there  are  some  which  we  could  easily  foresee  might 
arise.  The  specific  things  received  in  payment  might  have  been 
more  or  less  put  to  use  by  the  party  receiving  them,  for  which  he 
ought  to  be  accountable.  They  might  have  been  sold  and  trans- 
ferred in  different  modes,  and  thus  new  rights  and  interests  inter- 
vene. And  if  we  adopt  the  principle  of  rescission,  we  do  not  see, 
but  in  principle,  it  will  cut  off  by  the  roots  all  rights  accrued  under 
the  contract  before  repudiation,  which  would  certainly  be  unjust  to 
the  innocent  party.  And  as  the  repudiating  party  is  always  clearly 
in  the  wrong,  it  can  be  no  hardship  upon  him,  to  pay  in  currency  for 
what  he  has  received  in  advance  upon  the  contract.  If  one  party  has 
the  power  of  rescission,  then  the  other,  and  especially  the  innocent 
party,  should  have  the  power.  The  result  of  which  must  be  that, 
however  many  times  the  property  has  changed  hands,  or  under 


Il6  BENEFITS    COXFERRED    UNDER    CONTRACT. 

whatever  circumstances,  the  innocent  party  may  pursue  it  and  re- 
cover of  the  last  proprietor,  if  not  of  each  intervening  one,  which 
would  often  be  attended  with  serious  embarrassment  and  probable 
wrong. 

Judgment  reversed  and  case  remanded  for  new  trial. ^ 


LOCKWOOD  V.  BARNES. 
3  Hill  (N.  Y.)  128.— 1842. 

Barnes  brought  replevin  against  Lockwood  in  the  court  below 
for  two  colts.  The  plaintiff  in  the  court  below  owned  a  stud-horse, 
and  the  defendant  a  breeding  mare.  After  the  defendant  had  de- 
clined having  the  services  of  the  horse,  saying  he  did  not  wish  to 
raise  any  more  horses,  it  was  agreed  between  the  parties  that  the 
plaintiff  should  have  the  use  of  the  mare,  and  should  pay  the  de- 
fendant as  follows,  viz. :  if  the  issue  was  a  horse  colt,  $25,  and  if 
it  was  a  mare  colt,  $20.  The  mare  was  to  remain  in  the  possession 
and  ordinary  use  of  the  defendant,  and  he  was  also  to  keep  the  colt 
until  the  usual  time  for  weaning,  or  until  it  was  four  or  six  months 
old.  No  time  was  specified  for  the  payment  of  the  money.  On 
these  terms  the  horse  was  put  to  the  mare.  This  was  in  June,  1837. 
In  May,  1838,  the  mare  had  two  horse  colts.  In  April,  1839,  the 
plaintiff  tendered  the  defendant  $25,  offered  to  pay  for  the  keep 
of  the  colts  from  the  time  they  were  six  months  old,  and  demanded 
the  colts.  The  defendant  refused  to  deliver  them,  and  the  plaintiff 
brought  replevin.  The  defendant  insisted,  among  other  things,  that 
the  agreement  was  void  within  the  statute  of  frauds — it  being  one 
not  to  be  performed  within  a  year,  and  there  being  no  writing.  The 
court  overruled  the  objection,  and  the  defendant  excepted.  Verdict 
and  judgment  for  the  plaintiff.    The  defendant  brought  error, 

Bronson,  J. — *  *  *  *  As  I  understand  the  agreement  in 
this  case,  the  colt  was  not  to  be  delivered  to  the  plaintiff  until  it 
was  at  least  four  and  perhaps  six  months  old.  This,  added  to  the 
eleven  months  for  gestation,  would  make  the  whole  period  which 
was  to  elapse  before  the  contract  could  be  completely  executed 
fifteen  or  seventeen  months.  It  appears,  then,  that  by  the  terms 
of  the  agreement,  it  was  not  to  be  performed  within  a  year,  and  the 
fact  of  a  part  performance  within  that  time  will  not  aid  the  case. 
Although  no  time  was  specified  for  the  payment  of  the  money  by  the 
plaintiff,  it  was,  I  think,  payable  at  the  time  the  colt  was  to  be  de- 
livered, and  not  before  ;  and  so  on  neither  side  was  there  to  be  a  com- 
plete performance  within  the  year. 

As  the  defendant  refused  to  go  on  with  the  agreement  after  he 

'Accord,  Booker  v.  Wolf,  195  111.  365  (1902). 


STATUTE    OF    FRAUDS.  II7 

had  derived  a  partial  benefit  under  it,  he  must  pay  for  the  use  of  the 
horse ;  but  as  the  contract  was  void,  the  plaintiff  acquired  no  title 
to  the  colts,  and  the  court  below  erred  in  allowing  him  to  recover. 
It  is,  of  course,  unnecessary  to  examine  the  other  questions  made 
by  the  bills  of  exceptions.  Judgment  reversed. 


Andrews,  J.,  in  REED  v.  McCONNELL. 

133  N.  Y.  425,  430,  433,  435.— 1892. 

There  is  an  insuperable  difficulty  in  the  way  of  the  plaintiff  on 
this  appeal.  He  has  been  permitted  to  recover  upon  a  cause  of 
action  not  alleged  in  the  complaint.  He  sought  in  his  pleading 
to  recover  damages  for  the  breach  of  an  alleged  contract.  He  failed 
to  establish  that  any  valid  contract  was  made,  for  the  reason  that 
the  contract  proved  was  void  by  the  Statute  of  Frauds.  It  is  sub- 
stantially admitted  by  the  plaintiff  that  the  contract  sued  upon  is 
within  the  statute,  but  it  is  contended  on  his  behalf  that  the  de- 
fendants having  on  the  trial  insisted  upon  the  statute  as  a  bar  to  the 
enforcement  of  the  contract,  the  plaintiff  was  entitled  to  recover  in 
this  action  the  value  of  any  property  received  thereunder  by  the 
defendants  from  the  plaintiff.  The  defendants,  on  the  trial,  con- 
tended that  this  was  a  new  and  different  cause  of  action,  not  within 
the  pleadings,  and  inconsistent  with  the  cause  of  action  alleged  in 
the  complaint.  The  plaintiff  made  no  application  for  amendment. 
The  trial  judge  overruled  the  contention  of  the  defendants  and 
awarded  to  the  plaintiff,  among  other  things,  the  sum  of  $12,500, 
as  the  value  of  a  bark  contract  which  the  court  found  was  a  contri- 
bution of  the  plaintiff  to  the  tannery  enterprise,  which  was  the 
subject  of  the  void  contract.  *  *  *  *  A  cause  of  action  founded 
on  a  contract  to  recover  damages  for  its  breach,  and  a  cause  of 
action  to  recover  the  value  of  property  received  thereon  by  the 
party  who  afterwards  repudiates  it  as  void  by  the  Statute  of  Frauds, 
are  fundamentally  different.  The  claim  that  there  was  no  valid 
contract,  and  that,  therefore,  there  is  a  right  of  action  for  the 
value  of  property  received  under  it,  is  totally  inconsistent  with  a 
claim  to  enforce  the  contract  and  to  recover  upon  jt.  *  *  *  * 
Because  facts  are  developed  in  the  trial  of  one  cause  of  action  which 
suggest  a  right  of  recovery  in  an  action  for  a  different  cause,  this 
does  not  authorize  the  substitution  of  the  latter  cause  for  the  one 
alleged.  The  argument  urged  by  the  appellant  that  the  defendants 
waived  their  rights  by  not  objecting  specifically  to  the  evidence  of 
the  value  of  the  bark  contract  when  it  was  first  offered  on  the 
ground  of  the  statute,  is  not,  we  think,  tenable.  They  objected  gen- 
erally that  the  evidence  was  incompetent  and  immaterial.  When  the 
plaintiff  rested  thev  took  the  point  that  the  contract  proved  was  void 
by  the  statute.   The  plaintiff  had  ample  notice  of  the  ground  taken. 


Il8  BENEFITS    CONFERRED    UNDER    CONTRACT. 

He  applied  for  no  amendment  of  the  complaint,  but,  on  the  con- 
trary, insisted  that  he  was  entitled  to  recover  the  value  of  the  bark 
contract  under  the  pleadings  as  they  stood.     *     *     *     * 


IMPROVEMENTS. 

OREAR  V.  BOTTS. 
3  B.  MoN.   (Ky.)   360.— 1843. 

Marshall,  J. — It  was  decided  by  this  court,  in  the  case  of 
Shreve  v.  Grimes  (4  Littell  220),  that  a  purchaser  of  land  by  parol 
could  not  recover  in  assumpsit  from  the  vendor,  after  he  [the 
vendor]  had  repudiated  the  contract,  the  value  of  improvements  or 
ameliorations  made  on  the  land  by  the  vendee  before  such  repudia- 
tion. And  although  we  are  not  satisfied  that  an  assumpsit,  to 
remunerate  the  vendee  to  the  extent  of  the  actual  benefit  derived 
from  his  labor,  by  the  vendor,  might  not  be  implied,  on  the  ground 
that  the  vendor,  in  violation  of  his  promise,  voluntarily  takes  to 
himself  the  labor  of  the  vendee,  which  had  been  authorized  and  in- 
duced by  a  reliance  on  that  promise ;  yet,  as  there  has  been  a  de- 
cision of  this  court  against  it,  and  as  the  question  of  improvements 
is,  in  such  cases,  involved  with  the  question  of  rents,  and  the  Court 
of  Equity,  which  seems  to  be  the  more  appropriate  tribunal  for 
settling  these  questions,  afifords  an  adequate  and  well-known 
remedy ;  and  as,  moreover,  the  application  of  the  action  of  assump- 
sit to  the  recovery  of  the  value  of  improvements  as  a  separate  sub- 
ject might  tend  to  embarrass  rather  than  to  facilitate  the  proper 
adjustment  of  such  cases,  we  do  not  feel  authorized,  in  opposition 
to  the  case  referred  to,  and  in  the  absence  of  direct  authority  to  the 
contrary,  to  extend  the  doctrine  of  implied  assumpsit  to  the  present 
case. 

In  this  case,  it  is  true,  there  was  not  an  absolute  sale  of  the  land, 
but  a  parol  lease  or  license  to  occupy  for  life,  and  there  are  some 
other  distinguishing  circumstances ;  but  although  these  distinguish- 
ing circumstances  might  show  that  the  reasoning  of  the  court  in  the 
case  of  Shreve  v.  Grimes  docs  not  fully  apply  to  the  case  before  us, 
they  would  still  leave  it  within  the  principle  then  declared.  If  that 
principle  be  correct,  the  peculiar  circumstances  referred  to  are  not 
such  as  should  relieve  this  case  from  its  operation ;  nor  are  they  such 
as  to  obviate  the  objections  to  opening  this  new  field  of  implied 
assumpsits,  or  to  giving  such  an  application  of  the  action  of  assump- 
sit as  by  submitting  to  a  jury  the  assessment  of  damages  arising  out 
of  a  violation,  by  the  vendor,  of  his  parol  contract  for  the  sale  of 
land,  might  efifect  a  virtual  repeal  of  the  statute  of  frauds  on  that 
subject. 


STATUTE    OF    FRAUDS.  1 19 

There  was  no  error,  therefore,  in  instructing  the  jury  to  find  as  in 
case  of  a  non-suit,  and  the  judgment  is  affirmed.^ 


ALBEA  V.  GRIFFIN  et  al. 

2  Dev.  &  Bat.  Eq.  (N.  C.)  9.— 1838. 

Bill  for  specific  performance. 

Gaston,  J. — *  *  *  *  It  is  objected  on  the  part  of  the  de- 
fendants that  by  our  act  of  1819  all  parol  contracts  to  convey  land 
are  void,  and  that  no  part  performance  can,  in  this  state,  take  a 
parol  contract  out  of  the  operation  of  that  statute.  We  admit  this 
objection  to  be  well  founded,  and  we  hold  as  a  consequence  from  it 
that,  the  contract  being  void,  not  only  its  specific  performance  can- 
not be  enforced,  but  that  no  action  will  lie  in  law  or  equity  for  dam- 
ages because  of  non-performance.  But  we  are  nevertheless  of  opin- 
ion that  the  plaintiff  has  an  equity  which  entitles  him  to  relief,  and 
that  parol  evidence  is  admissible  for  the  purpose  of  showing  that 
equity.    The  plaintifif's  labor  and  money  have  been  expended  on  im- 

^In  Shreve  v.  Grimes,  4  Litt.  (Ky.)  220,  224  (1823),  the  court  says:  "In 
the  case  of  money  or  property  paid  to  the  vendor,  for  the  land  itself,  when  he 
had  only  given  his  promise  to  convey,  and  should  refuse  to  fulfil  it,  as  such 
promise  is  of  no  avail  in  law,  the  price  may  be  recovered  back,  on  the  prin- 
ciple that  the  consideration  on  which  it  was  paid  happens  to  fail.  But,  with 
regard  to  ameliorations  made  under  such  circumstances,  they  are  not  designed 
for  the  use  of  the  seller.  He  is  not  instrumental  in  causing  them  to  be  made, 
as  he  is  in  case  of  payment  of  the  price.  They  may  or  may  not  be  made,  at 
the  election  of  the  purchaser;  and  in  searching  the  principles  over,  for  which 
an  implied  assumpsit  will  lie,  we  discover  not  one  which  would  support  the 
action.  If  the  seller  can  be  at  all  made  liable  for  them,  it  must  be  on  the 
principle  of  equity,  that  he  ought  not,  when  the  improvements  are  delivered 
over  to  him,  to  be  enriched  by  another's  loss.  It  is  true,  an  implied  assumpsit 
will  lie  for  work  and  labor  done  for  the  defendant  upon  his  request  and  assent, 
without  any  fixed  price  or  any  express  promise  to  pay;  but  the  labor  must  be 
his,  and  the  work  be  done  for  him,  and  not  for  another,  and  the  work  after- 
wards happen  to  become  his,  before  the  action  can  be  sustained.  We,  there- 
fore, conceive  that  whatever  remedy  the  appellee  may  have,  it  is  not  by  an 
implied  assumpsit  for  work  and  labor." 

In  Mathews  v.  Davis,  6  Humph.  (Tenn.)  324  (1845),  plaintiff,  the  vendee 
under  an  oral  land  contract,  sued  the  vendor  in  assumpsit  for  "work  and  labor 
done  and  materials  furnished,"  while  in  possession  under  the  contract  of 
purchase,  in  putting  improvements  on  the  land.  In  denying  the  right  to  re- 
cover in  assumpsit  the  court  said:  "A  jury  cannot  judge  of  ameliorations 
and  adjust  the  matter  between  the  parties.  Besides  if  a  recovery  be  had  in 
a  court  of  law  at  all  it  must  be  had  for  the  work,  labor  and  materials,  so 
much  as  they  were  worth,  as  his  honor  told  the  jury.  But  we  have  seen  this 
is  not  the  criterion  of  compensation  and  therefore  it  is  unfit  for  a  court  of 
law,  and  exclusively  a  matter  to  be  adjusted  in  equity." 

But  if  assumpsit  were  a  possible  remedy  for  improvements  put  upon  land 
by  the  vendee,  the  action  would  not  lie  if  he  had  not  been  turned  out  of  pos- 
session, and  still  enjoys  the  benefits  of  them. — Miller  v.  Tobie,  41  N.  H.  84 
<i86o). 


A 

^20  BENEFITS    CONFERRED    UNDER    CONTRACT. 

proving  property  which  the  ancestor  of  the  defendants  encouraged 
him  to  expect  should  become  his  own,  and  by  the  act  of  God,  or  by 
the  caprice  of  the  defendants,  this  expectation  has  been  frustrated. 
The  consequence  is  a  loss  to  him  and  a  gain  to  them.  It  is  against 
conscience  that  they  should  be  enriched  by  gains  thus  acquired  to 
his  injury.  Baker  and  Wife  v.  Carson,  i  Dev.  &  Bat.  Eq.  Rep.  381. 
If  they  repudiate  the  contract,  which  they  have  a  right  to  do,  they 
must  not  take  the  improved  property  from  the  plaintiff  without  com- 
pensation for  the  additional  value  which  these  improvements  have 
conferred  upon  the  property. 

The  court  therefore  directs  that  it  be  referred  to  the  clerk  of  this 
court,  to  inquire  and  report  what  is  the  additional  value  conferred 
on  the  land  in  question  by  the  improvements  of  the  plaintiff,  and 
that  he  state  an  account  between  the*  parties,  charging  the  plain- 
tiff with  a  fair  rent  since  the  death  of  Andrew  Griffin,  and  crediting 
him  with  what  has  been  advanced  towards  payment  for  said  land, 
and  with  the  amount  of  the  additional  value  so  conferred  upon  it. 

Per  Curiam  decree  accordingly. 


RHEA  V.  ALLISON  et  al. 
3  Head.  (Tenn.)   176. — 1859. 

The  complainant  purchased  from  Williams  an  unimproved  lot, 
in  Knoxville,  at  the  price  of  $400.  She  paid  $60  in  cash.  The  pur- 
chase was  by  parol ;  but  the  complainant  took  possession  of  the  lot, 
and  proceeded  to  make  valuable  improvements  thereon.  Williams 
afterwards  conveyed  the  saine  lot  to  Allison,  who  instituted  an 
action  of  ejectment  against  the  complainant  to  recover  the  premises. 
This  bill  was  filed  enjoining  the  action  at  law,  and  seeking  an  ac- 
count for  improvements  and  the  purchase  money  paid,  and  asked 
that  the  same  be  declared  a  lien  upon  the  lot.  Chancellor  Lucky 
dismissed  the  bill.     The  complainant  appealed. 

Wright,  J. — It  is  settled  in  this  state  that  where  a  man  is  put 
in  possession  of  land  by  the  owner,  upon  an  invalid  or  verbal  sale, 
which  the  owner  fails  or  refuses  to  complete,  and  in  the  expecta- 
tion of  the  performance  of  the  contract,  makes  improvements,  a 
court  of  equity  will  directly  and  actively,  upon  a  bill  filed  by  him 
against  the  owner  for  an  account,  make  him  compensation  to  the 
full  value  of  all  his  improvements,  to  the  extent  they  have  en- 
hanced the  value  of  the  land,  deducting  rents  and  profits,  and  will 
treat  the  land  as  subject  to  a  lien  therefor.  Herring  &  Bird  v. 
Pollard's  Ex'rs,  4  Hum.  362;  Humphreys  v.  Holtsinger,  3  Sneed 
228-230.  The  same  rule  must  apply  to  purchase  money  paid  upon 
the  faith  of  the  contract. 

These  decisions  go  beyond   the  doctrine  of  the   English   courts, 


STATUTE    OF    FRAU^vS.  121 

which  only  allowed  the  value  of  the  improvements,  upon  the  ground, 
either  that  there  was  some  fraud,  or  where  the  aid  of  the  court  of 
equity  was  actively  sought  by  the  owner  to  get  possession  of  the 
estate.  2  Story's  Eq.,  sec,  1238.  Judge  Story,  and  other  law 
writers,  speak  of  it  as  an  implied  trust,  or  lien  upon  the  estate  itself ; 
while,  in  other  authorities,  it  is  called  an  equity.  This  equity  exists 
so  soon  as  the  improvements  are  made — attaches  itself  upon  the 
land — and  becomes  operative  against  the  owner,  or  a  purchaser  from 
him  with  notice,  actual  or  constructive.  In  such  a  case,  the  party 
making  the  improvements  having  acted  bona  fide  and  innocently, 
the  owner,  who  has  received  a  substantial  benefit,  ought,  ex  aequo  et 
bono,  to  pay  for  such  benefit.    2  Story's  Eq.,  sees.  1236-1237.  *  *  *  * 

If  it  be  true,  as  defendant,  Allison,  states  in  his  answer,  that 
Williams  had  purchased  the  lot  of  Deadrick  and  wife,  and  that  he 
had  to  pay  $400  to  them  in  discharge  of  the  vendor's  lien  or  mort- 
gage, in  order  to  get  a  deed,  then,  if  the  lot  comes  to  a  sale,  to  that 
extent  he  should  have  priority  over  complainant  in  the  proceeds. 
7  Yer.  168.  If,  however,  the  improvements  were  made  upon  a 
part  of  the  lot,  the  defendant,  Allison,  being  the  purchaser  of  the 
whole,  the  sum  paid  Deadrick  and  wife  will  be  apportioned  ratably, 
according  to  value,  upon  the  different  parts  of  the  lot. 

The  decree  of  the  chancellor  will  be  reversed,  and  the  cause  re- 
manded to  the  Chancery  Court  at  Knoxville,  where  an  account  will 
be  taken  upon  the  principles  of  this  opinion,  to  ascertain  the  amount 
due  complainant,  and  whether  defendant,  Allison,  is  entitled  to 
priority  to  any,  and  what  extent,  in  the  proceeds  of  the  sale  of  the 
lot  or  piece  of  ground  upon  which  the  improvements  were  made.^ 


BENDER'S  ADMINISTRATORS  v.  BENDER. 

37  Pa.  419. — 1860. 

Assumpsit  brought  by  Jacob  Bender  against  Samuel  Rock,  ad- 
ministrator, etc.,  of  George  Bender,  deceased,  with  notice  to  the 
heirs,  to  recover  damages  for  the  breach  of  an  alleged  parol  con- 
tract, made  between  him  and  his  father,  the  said  deceased,  by  which 
it  was  agreed  that  a  certain  tract  of  land  should  be  devised  to  the 
plaintiff.  The  defendant  pleaded,  noti-assunipsit  and  non-assumpsit 
infra  sex  anuos.  It  appeared  from  the  evidence  that,  in  considera- 
tion of  this  intended  devise,  the  plaintiff  was  to  maintain  his  father 
during  his  life,  and  pay  the  other  children  the  sum  of  $1,000,  at 
the  rate  of  $125  per  annum,  commencing  one  year  after  his  father's 
death,  and  move  from  the  farm  which  he  then  occupied,  to  that  of 
his  father,  which  he  did  in  1849  o^  1850,  where  he  remained  until 

'Accord,  Winters  v.  Elliott,  i  Lea  (Tenn.)  676  (1878). 


122  BENEFITS    CONFERRED    UNDER    CONTRACT. 

his  father's  death  in  1854 ;  and  that  during  that  time  he  had  ex- 
pended considerable  money  in  improvements  on  the  farm,  which 
was  the  subject  of  this  alleged  bargain.  George  Bender  died  in- 
testate, and,  on  proceedings  in  partition,  had  in  the  Orphans'  Court, 
the  farm  was  adjudged  to  the  plaintiff  at  the  appraisement. 

Verdict  in  favor  of  the  plaintiff  for  $433.88,  and  judgment. 

LovvRiE^  C.  J. — By  our  law  this  contract,  though  not  put  in  writ- 
ing, is  not  entirely  nugatory ;  but  only  so  far  so,  that  it  passes  no  in- 
terest in  the  land,  and  cannot  furnish  any  right  in  law  or  equity 
to  demand  a  specific  performance.  But  damages  may  be  recovered 
for  the  breach  of  it.    What  damages  ? 

Compensation  for  all  that  the  plaintiff  below  did  in  pursuance  of 
the  contract,  and  in  satisfaction  of  his  part  thereof,  and  for  all 
permanent  improvements  made  upon  the  land,  in  reliance  upon  the 
contract,  with  the  knowledge  of  the  defendant,  and  which  the  de- 
fendant gets  the  benefit  of  by  taking  back  the  land,  deducting  the 
value  of  the  rents  and  profits  of  the  land  during  the  plaintiff's  occu- 
pancy. 

The  making  of  improvements  seems  to  us  a  natural  consequence 
of  relying  on  the  contract,  and  the  party  who  witnesses  the  making 
of  them  without  objection,  and  then  rescinds  the  contract,  ought  to 
pay  for  them.  Thus  we  understand  the  court  to  have  decided. 
This  instruction  was  objected  to  here,  but  we  were  favored  with  no 
argument  upon  it,  and  we  see  no  error  in  it.    *    *    *    * 

Judgment  affirmed. 


c.    Breach  of  Contract. 
i.    Plaintiff  in  Default. 

JENNINGS  V.  CAMP. 
13  Johns.  (N.  Y.)  94. — 1816. 

The  plaintiff's  declaration  was  in  assumpsit,  and  contained  two 
counts.  The  first  count  stated  an  agreement  between  the  plaintiff 
and  defendant,  in  the  court  below,  dated  the  ist  of  July,  1812,  by 
which  Camp,  the  plaintiff  below  and  defendant  in  error,  agreed  to 
log  uj),  burn,  and  clear,  fit  for  sowing,  ten  acres  of  land  on  a  certain 
lot  belonging  to  the  defendant  below,  the  plaintiff  in  error,  in  a  good, 
farmerlike  manner,  by  the  20th  of  September,  and  to  fence  the  said 
ten  acres  with  a  good  rail  fence  by  the  ist  of  October  next;  and  the 
defendant  below  agreed  to  pay  the  plaintiff  at  the  rate  of  eight  dol- 
lars per  acre,  part  to  be  paid  in  oxen,  etc.,  and  then  averred  per- 
formance. 

The  second  count  was  a  general  indebitatus  assumpsit  for  work 
and  labor.     The  defendant  pleaded  the  general  issue,  and  the  jury 


BREACH    OF    CONTRACT.  I23 

found  a  special  verdict;  namely,  "That  the  plaintiff,  in  pursuance 
of  the  contract  and  agreement  mentioned  in  the  first  count,  did 
partly  clear  the  land  in  that  count  mentioned,  but  made  none  of  the 
fence ;  and  then,  of  his  own  accord,  default,  and  negligence,  and 
without  any  fault,  default,  or  consent  of  the  defendant,  abandoned 
and  gave  up  all  further  proceedings  towards  fulfilling  the  said 
contract,  and  hath  not  yet  finished  or  fulfilled  what  he  undertook 
to  perform  by  the  said  contract ;  and  whether,  under  these  circum- 
stances, it  is  competent  and  lawful  for  the  plaintiff  to  put  an  end  to 
the  said  contract  in  the  said  first  count  mentioned,  and  proceed  on  a 
general  count  for  work  and  labor,  and  to  recover  the  value  of  what 
he  did  in  pursuance  of  said  contract,  the  jury  are  uninformed,  and 
pray  the  advice  of  the  court,"  etc. ;  and  they  assessed  the  plaintiff's 
damages,  on  the  second  count  of  the  declaration,  at  fifty  dollars. 
The  court  below  gave  judgment  for  the  plaintiff,  and  the  cause  was 
submitted  to  this  court  without  argument. 

Spencer,  J. — This  case  does  not  present  the  question  whether,  on 
a  failure  to  prove  the  special  contract,  in  consequence  of  a  variance 
between  the  declaration  and  the  proof,  the  plaintiff  may  not  resort 
to  the  general  count ;  but  the  point  is,  whether  a  party  who  enters 
into  a  contract  and  performs  part  of  it,  and  then,  without  cause  or 
the  agreement  or  fault  of  the  other  party,  but  of  his  own  mere 
volition,  abandons  the  performance,  can  maintain  an  action  on  an 
implied  assumpsit  for  the  labor  actually  performed ;  and  it  seems 
to  me  that  the  mere  statement  of  the  case  shows  the  illegality  and 
injustice  of  the  claim. 

There  are  two  principles,  which  are  considered  well  established, 
precluding  the  plaintiff'  below  from  recovering:  1st.  The  contract 
is  open  between  the  parties,  and  still  in  force ;  the  defendant  below 
has  done  no  act  to  dissolve  or  rescind  it ;  and  it  was  decided  in  Ray- 
mond and  others  v.  Bernard,  12  Johns.  274,  upon  a  review  of  all 
the  cases,  that  if  the  special  agreement  was  still  in  force  the  plaintiff 
could  not  resort  to  the  general  counts.  2d.  The  contract  being ! 
entire,  performance  by  the  plaintiff  below  was  a  condition  precedent,  ' 
and  he  was  bound  to  show  a  full  and  substantial  performance  of  his 
part  of  the  contract ;  this  was  so  decided  in  M'Millan  v.  Vanderlip, 
12  Johns.  166.  In  Cutter  v.  Powell,  6  T.  R.  320,  a  sailor  hired  for 
a  voyage  took  a  promissory  note  from  his  employer  for  thirty 
guineas,  provided  he  proceeded,  continued,  and  did  his  duty  as 
second  mate,  from  Kingston  to  Liverpool.  Before  the  arrival  of  the 
ship  he  died ;  and  the  court  held  that  wages  could  not  be  recovered 
either  on  the  contract  or  on  a  quantum  meruit.  The  decision  was 
founded  on  common-law  principles.  Lord  Kenyon  said  that  where 
the  parties  have  come  to  an  express  contract  none  can  be  implied, 
has  prevailed  so  long  as  to  be  reduced  to  an  axiom  in  the  law. 
Ash  HURST,  J.,  very  pertinently  observed,  this  is  a  written  contract, 
and  speaks  for  itself ;  and  as  it  is  entire,  and  as  the  defendant's 
promise  depends  on  a  condition  precedent  to  be  performed  by  the 
other  party,  the  condition  must  be  performed  before  the  other  party 


124  BENEFITS    CONFERRED    UNDER    CONTRACT, 

is  entitled  to  receive  anything  under  it ;  that  the  plaintiff  had  no 
right  to  desert  the  agreement  and  recover  on  a  quantum  meruit;  for 
wherever  there  is  an  express  contract  the  parties  must  be  guided 
by  it ;  and  one  party  cannot  relinquish  or  abide  by  it  as  it  may  suit 
his  advantage. 

The  case  of  Faxon  v.  Mansfield  &  Holbrook,  2  Mass.  147,  is 
directly  in  point.  Mansfield  agreed  with  Holbrook  to  erect  and 
finish  a  barn  by  a  fixed  day,  when  he  was  to  receive  $400  in  full 
compensation ;  he  performed  part  of  the  work,  and  left  it  unfinished, 
without  the  consent  and  contrary  to  the  wishes  of  Holbrook.  Par- 
sons, C.  J.,  in  giving  the  opinion  of  the  court,  said,  on  these  facts, 
Mansfield  could  maintain  no  action,  either  on  his  contract  or  on  a 
qtmntum  meruit,  against  Holbrook ;  his  failure  arising  not  from  in- 
evitable accident,  but  his  own  neglect. 

In  Whiting  v,  Sullivan,  7  Mass.  109,  Parsons,  C.  J.,  said,  "As 
the  law  will  not  imply  a  promise  where  there  was  an  express  prom- 
ise, so  the  law  will  not  imply  a  promise  of  any  person  against  his 
own  express  declaration." 

In  Linningdale  v.  Livingston,  10  Johns.  36,  we  recognized  a  po- 
sition in  Buller's  Nisi  Prius,  "that  if  there  be  a  special  agreement, 
and  the  work  be  done,  but  not  in  pursuance  of  it,  the  plaintiff  may 
recover  upon  a  quantum  meruit ;  for  otherwise  he  would  not  be  able 
to  recover  at  all,"  This  observation  has  misled  the  court  below. 
Correctly  understood,  it  has  no  application  here.  It  supposes  a 
performance  of  the  contract,  with  variations  from  the  agreement, 
probably  with  the  assent  of  both  parties ;  or  it  may  mean  an  exten- 
sion of  the  time  within  which  the  agreement  was  to  be  performed, 
with  the  like  assent.  The  position  never  was  intended  to  embrace 
the  case  of  a  wilful  dereliction  of  the  contract  when  partly  exe- 
cuted, by  one  of  the  parties,  without  the  assent  and  against  the  will 
of  the  other. 

Judgment  reversed.^ 


BYRD  V.  BOYD. 

4  McCoRD  (S.  C.)  246. — 1827. 

The  plaintiff  brought  suit  against  the  defendant,  on  a  written 
contract  for  wages  for  one  year,  as  overseer.  The  contract  was  for 
$180  for  the  year.   The  plaintiff  managed  the  crop  well,  but  in  July 

'  Tn  Kctchiim  v.  Evcrtson,  13  Johns.  (N.  Y.)  359  (1816),  the  court  says 
(V-  3^5)  '■  "It  would  be  an  alarming  doctrine  to  hold  that  the  plaintiffs  might 
violate  the  contract  and,  because  they  chose  to  do  so,  make  their  own  infrac- 
tion of  the  agreement  the  basis  of  an  action  for  money  had  and  received. 
Every  man  who  makes  a  bad  bargain,  and  has  advanced  money  upon  it,  would 
have  the  same  right  to  recover  it  back  that  the  plaintiffs  have."  Compare 
Eldridge  v.  Rowc,  7  III.  91,  95-99  (1845). 


BREACH    OF    CONTRACT.  I25 

he  made  use  of  abusive  lanc^uag-e  to  the  defendant's  daughter,  for 
which  he  was  turned  away. 

HuGER,  J.,  who  tried  the  cause,  charged  the  jury  that  the  contract 
was  entire  for  the  year ;  that  if  the  plaintiiT  had  been  properly  turned 
away  he  ought  to  recover  nothing.  If  the  defendant  had  turned  him 
off  improperly  the  plaintiff  ought  to  recover  the  whole  amount. 
The  jury  found  a  verdict  in  favor  of  the  plaintiff"  for  the  whole 
amount  of  the  year's  wages.   The  defendant  appealed. 

Curia,  per  Johnson,  J. — *  *  *  *  When  the  employer 
wantonly  and  without  cause  turns  off  his  overseer,  at  a  season  of 
the  year  when  it  would  be  impracticable  to  get  employment  else- 
where, and  his  time  is  wholly  lost,  I  should  feel  no  hesitation  in  en- 
forcing the  rule  rigidly,  not  only  as  a  punishment  but  as  a  just  re- 
muneration to  the  overseer ;  and  so  when  the  overseer  abandons  the 
employer  without  cause,  or  by  his  neglect  inflicts  a  loss  on  him  com- 
mensurate with  the  services  which  he  has  performed,  he  clearly  de- 
serves no  compensation. 

There  is,  however,  a  third  class  of  cases  for  which  it  is  necessary 
to  provide,  and  which  are  perhaps  of  the  most  common  occurrence. 
They  are  those  where  the  employer  reaps  the  full  benefit  of  the 
services  which  have  been  rendered,  but  some  circumstance  occurs 
which  renders  his  discharging  of  the  overseer  necessary  and  justi- 
fiable, and  that  perhaps  not  immediately  connected  with  the  contract, 
as  in  the  present  case.  It  happens  frequently,  too,  that  it  becomes 
a  question  of  great  difffculty  to  ascertain  with  whom  the  first  wTong 
commenced.  I  cannot  reconcile  it  to  my  notions  of  natural  justice, 
that  the  overseer  should  not  recover  a  compensation  for  the  services, 
so  far  as  they  were  directed,  and  which  have  been  beneficial  to  the 
employer.  And  I  am  unable  to  discover  any  evil  which  is  likely  to 
result  from  submitting  such  a  matter  to  the  sound  discretion  of  a 
jury  of  the  country.  And  as  a  matter  of  expediency  I  should  be 
disposed  to  establish  it  as  a  rule.  This  conclusion  is,  I  think,  sup- 
ported by  the  principle  of  the  exception  before  noticed,  and  by 
the  common  case  in  which  a  party  is  permitted  to  prove  by  way  of 
defense,  that  owing  to  some  defect  in  the  execution  of  work  and 
labor  done  and  performed,  the  thing  is  not  worth  so  much  as  was 
stipulated  for ;  and  the  still  more  comprehensive  principle,  that  a 
partial  failure  of  consideration  is  a  good  ground  of  defense.  Cases 
of  this  description  are  of  very  frequent  occurrence,  and  although 
this  question  has  never  been  judicially  determined,  it  may  be  clearly 
collected  from  them  that  the  prevailing  opinion  is  favorable  to  an 
apportionment.  In  some  cases  the  jury  have  found  the  entire  sum, 
but  in  most  they  have  apportioned  it  when  the  circumstances  justified 
it.  Yet  the  point  has  never  been  adverted  to  by  the  bench  or  the 
bar  {vide  Crawford  v.  Davis,  2  Const.  Rep.  403 :  Clancy  v.  Robin- 
son, 2  Const.  Rep.,  and  Connelly  v.  Irby),  except  in  the  case  of 
Cox  V.  Adams,  i  Nott  &  McCord,  284,  which  is  relied  on  in  opposi- 
tion to  the  motion.    But  by  referring  to  that  case,  it  will  be  found 


126  BENEFITS    CONFERRED    UNDER    CGNTIIACr. 

that  the  question  was  not  made,  nor  is  there  even  a  dictum  in  re- 
lation to  it. 

I  am  of  opinion,  therefore,  that  the  case  should  go  back  on  the 
ground  of  misdirection,  unbiased  by  any  opinion  of  the  court  as  to 
the  facts,  and  it  is  ordered  accordingly. 

New  trial  granted.^ 


BRITTON  V.  TURNER. 

6  N.  H.  481.— 1834. 

Assumpsit  for  work  and  labor  performed  by  the  plaintiff,  in  the 
service  of  the  defendant,  from  March  9,  1831,  to  December  27,  1831. 
The  declaration  contained  the  common  counts,  and  among  them  a 
count  in  quantum  meruit  for  the  labor,  averring  it  to  be  worth  $100. 
At  the  trial  in  the  C.  C.  Pleas,  the  plaintiff  proved  the  performance 
of  the  labor  as  set  forth  in  the  declaration.  The  defense  was  that 
it  was  performed  under  a  special  contract, — that  the  plaintiff  agreed 
to  work  one  year,  from  some  time  in  March,  1831,  to  March,  1832, 
and  that  the  defendant  was  to  pay  him  for  said  year's  labor  the  sum 
of  $120;  and  the  defendant  offered  evidence  tending  to  show  that 
such  was  the  contract  under  which  the  work  was  done.  Evidence 
was  also  offered  to  show  that  the  plaintiff  left  the  defendant's  serv- 
ice without  his  consent,  and  it  was  contended  by  the  defendant  that 
the  plaintiff  had  no  good  cause  for  not  continuing  in  his  employ- 
ment. There  was  no  evidence  offered  of  any  damage  arising  from 
the  plaintiff's  departure,  farther  than  was  to  be  inferred  from  his 
non-fulfilment  of  the  entire  contract. 

The  court  instructed  the  jury,  that  if  they  were  satisfied  from  the 
evidence  that  the  labor  was  performed,  under  a  contract  to  labor  a 
year,  for  the  sum  of  $120,  and  if  they  were  satisfied  that  the  plain- 
tiff labored  only  the  time  specified  in  the  declaration,  and  then  left 
the  defendant's  service,  against  his  consent  and  without  any  good 
cause,  yet  the  plaintiff  was  entitled  to  recover,  under  his  quantum 
meruit  count,  as  much  as  the  labor  he  performed  was  reasonably 
worth;  and  under  this  direction  the  jury  gave  a  verdict  for  the 
plaintiff  for  the  sum  of  $95. 

The  defendant  excepted  to  the  instructions  thus  given  to  the  jury. 

Parker,  J. — It  may  be  assumed,  that  the  labor  performed  by  the 
plaintiff,  and  for  which  he  seeks  to  recover  a  compensation  in  this 
action,  was  commenced  under  a  special  contract  to  labor  for  the  de- 
fendant the  term  of  one  year,  for  the  sum  of  $120,  and  that  the 
plaintiff  has  labored  but  a  portion  of  that  time,  and  has  voluntarily 
failed  to  complete  the  entire  contract.     It  is  clear,  then,  that  he  is 

^Accord,  even  where  the  discharpe  is  justified  by  causes  involving  the 
proper  i)crformance  of  the  services,  Hildcbrand  v.  Anier.  Fine  Art.  Co.,  109 
Wis.  171  (1901). 


BREACH    OF    CONTRACT.  12/ 

not  entitled  to  recover  upon  the  contract  itself,  because  the  service, 
which  was  to  entitle  him  to  the  sum  agreed  upon,  has  never  been 
performed. 

But  the  question  arises,  can  the  plaintiff,  under  these  circum- 
stances, recover  a  reasonable  sum  for  the  service  he  has  actually 
performed,  under  the  count  in  quantum  mcruitf  Upon  this,  and 
questions  of  a  similar  nature,  the  decisions  to  be  found  in  the  books 
are  not  easily  reconciled.  It  has  been  held,  upon  contracts  of  this 
kind  for  labor  to  be  performed  at  a  specified  price,  that  the  party 
who  voluntarily  fails  to  fulfil  the  contract  by  performing  the  whole 
labor  contracted  for,  is  not  entitled  to  recover  anything  for  the  labor 
actually  performed,  however  much  he  may  have  done  toward  the 
performance ;  and  this  has  been  considered  the  settled  rule  of  law 
upon  this  subject.  Stark  v.  Parker,  2  Pick.  267;  Faxon  v.  Mans- 
field, 2  Mass.  147;  McMillan  v.  Vanderlip,  12  Johns.  165;  Jennings 
V.  Camp,  13  Johns.  94;  Reab  v.  Moor,  19  Johns.  337;  Lantry  v. 
Parks,  8  Cow.  6^, ;  Sinclair  v.  Bowles,  9  B.  &  C.  92 ;  Spain  v.  Arnott, 
2  Stark.  N.  P.  256. 

That  such  rule  in  its  operation  may  be  very  unequal,  not  to  say 
unjust,  is  apparent.  A  party  who  contracts  to  perform  certain 
specified  labor,  and  who  breaks  his  contract  in  the  first  instance, 
without  any  attempt  to  perform  it,  can  only  be  made  liable  to  pay 
the  damages  which  the  other  party  has  sustained  by  reason  of  such 
non-performance,  which  in  many  instances  may  be  trifling ;  whereas 
a  party  who  in  good  faith  has  entered  upon  the  performance  of  his 
contract,  and  nearly  completed  it,  and  then  abandoned  the  further 
performance — although  the  other  party  has  had  the  full  benefit  of 
all  that  has  been  done,  and  has  perhaps  sustained  no  actual  dam- 
age— is  in  fact  subjected  to  a  loss  of  all  which  has  been  performed, 
in  the  nature  of  damages  for  the  non-fulfilment  of  the  remainder, 
upon  the  technical  rule,  that  the  contract  must  be  fully  performed 
in  order  to  a  recovery  of  any  part  of  the  compensation. 

By  the  operation  of  this  rule,  then,  the  party  who  attempts  per- 
formance may  be  placed  in  a  much  worse  situation  than  he  who 
wholly  disregards  his  contract,  and  the  other  party  may  receive 
much  more,  by  the  breach  of  the  contract,  than  the  injury  which  he 
has  sustained  by  such  breach,  and  more  than  he  could  be  entitled  to 
were  he  seeking  to  recover  damages  by  an  action.  The  case  before 
us  presents  an  illustration.  Had  the  plaintiff  in  this  case  never  en- 
tered upon  the  performance  of  his  contract,  the  damage  could  not 
probably  have  been  greater  than  some  small  expense  and  trouble 
incurred  in  procuring  another  to  do  the  labor  which  he  had  con- 
tracted to  perform.  But  having  entered  upon  the  performance,  and 
labored  nine  and  a  half  months,  the  value  of  which  labor  to  the 
defendant  as  found  by  the  jury  is  $95,  if  the  defendant  can  succeed 
in  this  defense  he  in  fact  receives  nearly  five-sixths  of  the  value  of 
a  whole  year's  labor,  by  reason  of  the  breach  of  contract  by  the 
plaintiff,  a  sum  not  only  utterly  disproportionate  to  any  probable. 
not  to  say  possible,  damage  which  could  have  resulted  from  the  neg- 


128  BENEFITS    CONFERRED    UNDER    CONTRACT. 

lect  of  the  plaintiff  to  continue  the  remaining-  two  and  a  half  months, 
but  altogether  beyond  any  damage  which  could  have  been  recovered 
by  the  defendant,  had  the  plaintiff  done  nothing  toward  the  fulfil- 
ment of  his  contract. 

Another  illustration  is  furnished  in  Lantry  v.  Parks,  8  Cow.  83. 
There  the  defendant  hired  the  plaintiff  for  a  year,  at  $10  per  month. 
The  plaintiff  worked  ten  and  a  half  months,  and  then  left,  saying 
he  would  work  no  more  for  him.  This  was  on  Saturday ;  on  Mon- 
day the  plaintiff  returned,  and  offered  to  resume  his  work,  but  the 
defendant  said  he  would  employ  him  no  longer.  The  court  held 
that  the  refusal  of  the  plaintiff  on  Saturday  was  a  violation  of  his 
contract,  and  that  he  could  recover  nothing  for  the  labor  performed. 

There  are  other  cases,  however,  in  which  principles  have  been 
adopted  leading  to  a  different  result.  It  is  said,  that  where  a  party 
contracts  to  perform  certain  work,  and  to  furnish  materials,  as,  for 
instance,  to  build  a  house,  and  the  work  is  done,  but  with  some  varia- 
tions from  the  mode  prescribed  by  the  contract,  yet  if  the  other 
party  has  the  benefit  of  the  labor  and  materials  he  should  be  bound 
to  pay  so  much  as  they  are  reasonably  worth.  2  Stark.  Ev.  97,  98 ; 
Hayward  v.  Leonard,  7  Pick.  181  ;  Smith  v.  First  Congregational 
Meeting  House  in  Lowell,  8  Pick.  178;  Jewell  v.  Schroeppel,  4  Cow. 
564;  Hayden  v.  Madison,  7  Green  78;  Bull.  N.  P.  139;  4  Bos.  & 
Pul.  355 ;  10  Johns.  36;  13  Johns.  97;  7  East  479.  A  different  doc- 
trine seems  to  have  been  holden  in  Ellis  v.  Hamlen,  3  Taunt.  52,  and 
it  is  apparent,  in  such  cases,  that  if  the  house  has  not  been  built  in 
the  manner  specified  in  the  contract,  the  work  has  not  been  done. 
The  party  has  no  more  performed  w^hat  he  contracted  to  perform, 
than  he  who  has  contracted  to  labor  for  a  certain  period,  and  failed 
to  complete  the  time.  It  is  in  truth  virtually  conceded  in  such  cases 
that  the  work  has  not  been  done,  for  if  it  had  been,  the  party  per- 
forming it  would  be  entitled  to  recover  upon  the  contract  itself, 
which  it  is  held  he  cannot  do.  Those  cases  are  not  to  be  distin- 
guished, in  principle,  from  the  present,  unless  it  be  in  the  circum- 
stance that  where  the  party  has  contracted  to  furnish  materials, 
and  do  certain  labor,  as  to  build  a  house  in  a  specified  manner,  if 
it  is  not  done  according  to  the  contract,  the  party  for  whom  it  is 
built  may  refuse  to  receive  it, — elect  to  take  no  benefit  from  what 
has  been  performed ;  and  therefore  if  he  does  receive,  he  shall  be 
bound  to  pay  the  value — whereas  in  a  contract  for  labor,  merely, 
from  day  to  day,  the  party  is  continually  receiving  the  benefit  of  the 
contract  under  an  expectation  that  it  will  be  fulfilled,  and  cannot 
upon  the  breach  of  it,  have  an  election  to  refuse  to  receive  what  has 
been  done,  and  thus  discharge  himself  from  payment.  But  we  think 
this  difference  in  the  nature  of  the  contracts  does  not  justify  the  ap- 
plication of  a  different  rule  in  relation  to  them. 

The  party  who  contracts  for  labor  merely,  for  a  certain  period, 
does  so  with  full  knowledge  that  he  must,  from  the  nature  of  the 
case,  be  accepting  part  performance  from  day  to  day,  if  the  other 
party  commences  the  performance,  and  with  knowledge  also  that 


BREACH    OF    CONTRACT.  I29 

the  Other  may  eventually  fail  of  completing-  the  entire  term.  If 
under  such  circumstances  he  actually  receives  a  henefit  from  the 
labor  performed,  over  and  above  the  damage  occasioned  by  the  fail- 
ure to  complete,  there  is  as  much  reason  why  he  should  pay  the 
reasonable  worth  of  what  has  thus  been  done  for  his  benefit,  as  there 
is  when  he  enters  and  occupies  the  house  which  has  been  built  for 
him,  but  not  according-  to  the  stipulations  of  the  contract,  and  which 
he  perhaps  enters,  not  because  he  is  satisfied  with  what  has  been 
done,  but  because  circumstances  compel  him  to  accept  it  such  as  it 
is,  that  he  should  pay  for  the  value  of  the  house. 

Where  goods  are  sold  upon  a  special  contract  as  to  their  nature, 
quahty,  and  price,  and  have  been  used  before  their  inferiority  has 
been  discovered,  or  other  circumstances  have  occurred  which  have 
rendered  it  impracticable  or  inconvenient  for  the  vendee  to  rescind 
the  contract  in  toto,  it  seems  to  have  been  the  practice  formerly  to 
allow  the  vendor  to  recover  the  stipulated  price,  and  the  vendee  re- 
covered by  a  cross  action  damages  for  the  breach  of  the  contract. 
"But  according  to  the  later  and  more  convenient  practice,  the  vendee 
in  such  case  is  allowed,  in  an  action  for  the  price,  to  give  evidence 
of  the  inferiority  of  the  goods,  in  reduction  of  damages,  and  the 
plaintifif  who  has  broken  his  contract  is  not  entitled  to  recover  more 
than  the  value  of  the  benefits  which  the  defendant  has  actually  de- 
rived from  the  goods ;  and  where  the  latter  has  derived  no  benefit, 
the  plaintiff  cannot  recover  at  all."  2  Stark.  Ev.  640,  642 ;  Okell 
V.  Smith,  I  Stark.  N.  P.  107.  So  where  a  person  contracts  for  the 
purchase  of  a  quantity  of  merchandise,  at  a  certain  price,  and  re- 
ceives a  delivery  of  part  only,  and  he  keeps  that  part,  without  any 
offer  of  a  return,  it  has  been  held  that  he  must  pa\  the  value  of  it. 
Shipton  V.  Casson,  5  B.  &  C. ;  Comyn.  Dig.  Action  F. ;  Baker  v. 
Sutton,  I  Camp.  55,  note.  A  different  opinion  seems  to  have  been 
entertained:  Waddington  v.  Oliver,  5  B.  &  P.  61,  and  a  different 
decision  was  had.  Walker  v.  Dixon,  2  Stark.  N.  P.  281.  There  is  a 
close  analog^'  between  all  these  classes  of  cases,  in  which  such  di- 
verse decisions  have  been  made. 

If  the  party  who  has  contracted  to  receive  merchandise,  takes  a 
part  and  uses  it,  in  expectation  that  the  whole  will  be  delivered, 
which  is  never  done,  there  seems  to  be  no  greater  reason  that  he 
should  pay  for  what  he  has  received,  than  there  is  that  the  party 
who  has  received  labor  in  part,  under  similar  circumstances,  should 
pay  the  value  of  what  has  been  done  for  his  benefit.  It  is  said  that 
in  those  cases  where  the  plaintiff  has  been  permitted  to  recover 
there  was  an  acceptance  of  what  had  been  done.  The  answer  is, 
that  where  the  contract  is  to  labor  from  day  to  day,  for  a  certain 
period,  the  party  for  whom  the  labor  is  done  in  truth  stipulates  to 
receive  it  from  day  to  day,  as  it  is  performed,  and  although  the 
other  may  not  eventually  do  all  he  has  contracted  to  do,  there  has 
been,  necessarily,  an  acceptance  of  what  has  been  done  in  pursu- 
ance of  the  contract,  and  the  party  must  have  understood  when  he 
Woodruff's  Cases— 9 


130  BENEFITS    CONFERRED    UNDER    CONTRACT. 

made  the  contract  that  there  was  to  be  such  acv.«_ptance.  If  then 
the  party  stipulates  in  the  outset  to  receive  part  performance  from 
time  to  time,  with  a  knowledge  that  the  whole  may  not  be  completed, 
we  see  no  reason  why  he  should  not  equally  be  holden  to  pay  for  the 
amount  of  value  received,  as  where  he  afterward  takes  the  benefit 
of  what  has  been  done,  with  a  knowledge  that  the  whole  which  was 
contracted  for  has  not  been  performed.  In  neither  case  has  the  con- 
tract been  performed.  In  neither  can  an  action  be  sustained  on  the 
original  contract.  In  both  the  party  has  assented  to  receive  what 
is  done.  The  only  difference  is,  that  in  the  one  case  the  assent  is 
prior,  with  a  knowledge  that  all  may  not  be  performed,  in  the  other 
it  is  subsequent,  with  a  knowledge  that  the  whole  has  not  been  ac- 
complished. We  have  no  hesitation  in  holding  that  the  same  rule 
should  be  applied  to  both  classes  of  cases,  especially  as  the  opera- 
tion of  the  rule  will  be  to  make  the  party  who  has  failed  to  fulfil 
his  contract,  liable  to  such  amount  of  damages  as  the  other  party 
has  sustained,  instead  of  subjecting  him  to  an  entire  loss  for  a  par- 
tial failure,  and  thus  making  the  amount  received  in  many  cases 
wholly  disproportionate  to  the  injury,  i  Saund.  320,  c ;  2  Stark. 
Ev.  643.  It  is  as  "hard  upon  the  plaintiff  to  preclude  him  from  re- 
covering at  all,  because  he  has  failed  as  to  part  of  his  entire  under- 
taking," where  his  contract  is  to  labor  for  a  certain  period,  as  it  can 
be  ir  any  other  description  of  contract,  provided  the  defendant  has 
received  a  benefit  and  value  from  the  labor  actually  performed. 

We  hold,  then,  that  where  a  party  undertakes  to  pay  upon  a  special 
contract  for  the  performance  of  labor,  or  the  furnishing  of  ma- 
terials, he  is  not  to  be  charged  upon  such  special  agreement  until 
the  money  is  earned  according  to  the  terms  of  it,  and  where  the 
parties  have  made  an  express  contract  the  law  wall  not  imply  and 
raise  a  contract  different  from  that  which  the  parties  have  entered 
into,  except  upon  some  farther  transaction  between  the  parties.  In 
case  of  a  failure  to  perform  such  special  contract,  by  the  default  of 
the  party  contracting  to  do  the  service,  if  the  money  is  not  due  by 
the  terms  of  the  special  agreement  he  is  not  entitled  to  recover  for 
his  labor,  or  for  the  materials  furnished,  unless  the  other  party  re- 
ceives what  has  been  done,  or  furnished,  and  upon  the  whole  case 
derives  a  benefit  from  it.  Taft  v.  Montague,  14  Mass.  282 ;  2  Stark. 
Ev.  644.  But  if,  where  a  contract  is  made  of  such  a  character,  a 
party  actually  receives  labor,  or  materials,  and  thereby  derives  a 
benefit  and  advantage,  over  and  above  the  damage  which  has  re- 
sulted from  the  breach  of  the  contract  by  the  other  party,  the  labor 
actually  done  and  the  value  received  furnish  a  new  consideration, 
and  the  law  thereupon  raises  a  promise  to  pay  to  the  extent  of  the 
reasonable  worth  of  such  excess.  This  may  be  considered  as  mak- 
ing a  new  case,  one  not  within  the  original  agreement,  and  the  party 
is  entitled  to  "recover  on  his  new  case,  for  the  work  done,  not  as 
agreed,  but  yet  accepted  by  the  defendant."    i  Dane's  Abr.  224. 

If,  on  such  failure  to  perform  the  whole,  the  nature  of  the  con- 
tract be  such  that  the  employer  can  reject  what  has  been  done,  and 


BREACH    OF    CONTRACT.  I3I 

refuse  to  receive  any  benefit  from  the  part  performance,  he  is  en- 
titled so  to  do,  and  in  such  case  is  not  Uable  to  be  charged,  unless 
he  has  before  assented  to  and  accepted  of  what  has  been  done,  how- 
ever much  the  other  party  may  have  done  toward  the  performance. 
He  has  in  such  case  received  nothing,  and  having  contracted  to  re- 
ceive nothing  but  the  entire  matter  contracted  for,  he  is  not  bound 
to  pay,  because  his  express  promise  was  only  to  pay  on  receiving 
the  whole,  and  having  actually  received  nothing  the  law  cannot  and 
ought  not  to  raise  an  implied  promise  to  pay.  But  where  the  party 
receives  value, — takes  and  uses  the  materials,  or  has  advantage  from 
the  labor,  he  is  liable  to  pay  the  reasonable  worth  of  what  he  has  re- 
ceived. Farnsworth  v.  Garrard,  i  Camp.  38.  And  the  rule  is  the 
same  whether  it  was  received  and  accepted  by  the  assent  of  the  party 
prior  to  the  breach,  under  a  contract  by  which,  from  its  nature,  he 
was  to  receive  labor  from  time  to  time  until  the  completion  of  the 
whole  contract ;  or  whether  it  was  received  and  accepted  by  an  as- 
sent subsequent  to  the  performance  of  all  which  was  in  fact  done. 
If  he  received  it  under  such  circumstances  as  precluded  him  from 
rejecting  it  afterward,  that  does  not  alter  the  case, — it  has  still  been 
received  by  his  assent. 

In  fact  we  think  the  technical  reasoning,  that  the  performance  of 
the  whole  labor  is  a  condition  precedent,  and  the  right  to  recover 
anything  dependent  upon  it ;  that  the  contract  being  entire  there  can 
be  no  apportionment ;  and  that  there  being  an  express  contract  no 
other  can  be  implied,  even  upon  the  subsequent  performance  of 
service, — is  not  properly  applicable  to  this  species  of  contract,  where 
a  beneficial  service  has  been  actually  performed ;  for  we  have  abun- 
dant reason  to  believe,  that  the  general  understanding  of  the  com- 
munity is  that  the  hired  laborer  shall  be  entitled  to  compensation 
for  the  service  actually  performed,  though  he  do  not  continue  the 
entire  term  contracted  for,  and  such  contracts  must  be  presumed  to 
be  made  with  reference  to  that  understanding,  unless  an  express 
stipulation  shows  the  contrary.  Where  a  beneficial  service  has  been 
performed  and  received,  therefore,  under  contracts  of  this  kind,  the 
mutual  agreements  cannot  be  considered  as  going  to  the  whole  of 
the  consideration,  so  as  to  make  them  mutual  conditions,  the  one 
precedent  to  the  other,  without  a  specific  proviso  to  that  effect. 
Boone  v.  Eyre,  i  H.  Bl.  273,  note;  Campbell  v.  Jones,  6  D.  &  E. 
570;  Ritchie  v.  Atkinson,  10  East  295;  Burn  v.  Miller,  4  Taunt. 
745.  It  is  easy,  if  parties  so  choose,  to  provide  by  an  express  agree- 
ment that  nothing  shall  be  earned,  if  the  laborer  leaves  his  employer 
without  having  performed  the  whole  service  contemplated,  and  then 
there  can  be  no  pretense  for  a  recovery  if  he  voluntarily  deserts  the 
service  before  the  expiration  of  the  time. 

The  amount,  however,  for  which  the  employer  ought  to  be 
charged,  where  the  laborer  abandons  his  contract,  is  only  the  rea- 
sonable worth,  or  the  amount  of  advantage  he  receives  upon  the 
whole  transaction  :  Wadleigh  v.  Sutton,  6  N.  H.  15  ;  and,  in  esti- 
mating the  value  of  the  labor,  the  contract  price  for  the  service 


132  BENEFITS    CONFERRED    UNDER    CONTRACT. 

cannot  be  exceeded.  7  Green.  78 ;  Dubois  v.  Pelaware  &  Hudson 
Canal  Company,  4  Wend.  285;  Koon  v.  Greenman,  7  Wend.  121. 
If  a  person  makes  a  contract  fairly  he  is  entitled  to  have  it  fully 
performed,  and  if  this  is  not  done  he  is  entitled  to  damages.  He 
may  maintain  a  suit  to  recover  the  amount  of  damage  sustained  by 
the  non-performance.  The  benefit  and  advantage  which  the  party 
takes  by  the  labor,  therefore,  is  the  amount  of  value  which  he  re- 
ceives, if  any,  after  deducting  the  amou^it  of  damage ;  and  if  he 
elects  to  put  this  in  defense  he  is  entitled  so  to  do,  and  the  implied 
promise  which  the  law  will  raise  in  such  case,  is  to  pay  such  amount 
of  the  stipulated  price  for  the  whole  labor  as  remains,  after  deduct- 
ing what  it  would  cost  to  procure  a  completion  of  the  residue  of  the 
service,  and  also  any  damage  which  has  been  sustained  by  reason  of 
the  non-fulfilment  of  the  contract.  If  in  such  case  it  be  found  that 
the  damages  are  equal  to,  or  greater  than  the  amount  of  the  labor 
performed,  so  that  the  employer,  having  a  right  to  the  full  per- 
formance of  the  contract,  has  not  upon  the  whole  case  received  a 
beneficial  service,  the  plaintiff  cannot  recover. 

This  rule,  by  binding  the  employer  to  pay  the  value  of  the  service 
he  actually  receives,  and  the  laborer  to  answer  in  damages  where  he 
does  not  complete  the  entire  contract,  will  leave  no  temptation  to 
the  former  to  drive  the  laborer  from  his  service,  near  the  close  of 
his  term,  by  ill  treatment,  in  order  to  escape  from  payment ;  nor  to 
the  latter  to  desert  his  service  before  the  stipulated  time,  without  a 
sufficient  reason ;  and  it  will  in  most  instances  settle  the  whole  con- 
troversy in  one  action,  and  prevent  a  multiplicity  of  suits  and  cross 
actions.  There  may  be  instances,  however,  where  the  damage  oc- 
casioned is  much  greater  than  the  value  of  the  labor  performed,  and 
if  the  party  elects  to  permit  himself  to  be  charged  for  the  value  of 
the  labor,  without  interposing  the  damages  m  defense,  he  is  entitled 
to  do  so,  and  may  have  an  action  to  recover  his  damages  for  the 
non-performance,  whatever  they  may  be.  Crowninshield  v.  Robin- 
son, I  Mason  93.  And  he  may  commence  such  action  at  any  time 
after  the  contract  is  broken,  notwithstanding  no  suit  has  been  insti- 
tuted against  him  ;  but  if  he  elects  to  have  the  damages  considered  in 
the  action  against  him,  he  must  be  understood  as  conceding  that  they 
are  not  to  be  extended  beyond  the  amount  of  what  he  has  received, 
and  he  cannot  afterward  sustain  an  action  for  farther  damages. 

Applying  the  principles  thus  laid  down  to  this  case,  the  plaintiff 
is  entitled  to  judgment  on  the  verdict. 

The  defendant  sets  up  a  mere  breach  of  the  contract  in  defense  of 
the  action,  but  this  cannot  avail  him.  He  does  not  appear  to  have 
offered  evidence  to  show  that  he  was  damnified  by  such  breach,  or 
to  have  asked  that  a  deduction  should  be  made  upon  that  account. 
The  direction  to  the  jury  was  therefore  correct,  that  the  plaintiff 
was  entitled  to  recover  as  much  as  the  labor  performed  was  reason- 
ably worth,  and  the  jury  appear  to  have  allowed  a  pro  rata  compen- 
sation, for  the  time  which  the  ])laintiff  labored  in  the  defendant's 
service.     As  the  defendant  has  not  claimed  or  had  any  adjustment 


1 


BREACH    OF    CONTRACT.  133 

of  damages,  for  the  breach  of  the  contract,  in  this  action,  if  he  has 
actually  sustained  damage  he  is  still  entitled  to  a  suit  to  recover 
the  amount. 

Whether  it  is  not  necessary,  in  cases  of  this  kind,  that  notice 
should  be  given  to  the  employer  that  the  contract  is  abandoned,  with 
an  offer  of  adjustment  and  demand  of  payment;  and  whether  the 
laborer  must  not  wait  until  the  time  when  the  money  would  have 
been  due  according  to  the  contract,  before  commencing  an  action,  5 
B.  &  P.  61,  are  questions  not  necessary  to  be  settled  in  this  case,  no 
objections  of  that  nature  having  been  taken  here. 

Judgment  on  the  verdict.^ 


Valentine,  J.,  in  DUNCAN  v.  BAKER. 

21   Kan.  99,  107. — 1878. 

The  weight  of  authority  at  the  present  time,  we  think,  is  un- 
questionably against  the  doctrine  that  where  a  contract  is  entire, 
and  consequently  not  apportionable,  and  has  been  only  partially  per- 
formed, the  failing  party  is  not  entitled  to  recover  or  receive  tany- 
thing  for  what  he  has  actually  done.  It  will  perhaps  be  admitted 
that  the  doctrine  has  been  overturned  with  respect  to  all  contracts 
except  those  for  personal  services ;  and  if  so,  then  there  is  not  much 
of  the  doctrine  left.  But  if  the  doctrine  is  to  be  abandoned  with  refer- 
ence to  all  contracts  except  those  for  personal  services,  then  why 
not  abandon  the  doctrine  altogether?  The  reason  usually  given  is, 
that  the  employer  in  contracts  for  personal  services  has  no  choice 
except  to  accept,  receive  and  retain  the  services  already  performed, 
while  in  other  contracts  he  may  refuse  to  accept,  or  may  return  the 
proceeds  of  the  partially-performed  contract,  if  he  choose.  But  this 
is  not  always,  nor  even  generally,  true  with  respect  to  other  con- 
tracts. Suppose  a  miller  purchases  a  thousand  bushels  of  wheat  for 
a  thousand  dollars,  the  wheat  to  be  delivered  within  one  month ;  he 
receives  the  wheat  as  it  is  delivered,  and  grinds  it  into  flour ;  when 
the  vendor  has  delivered  500  bushels  he  refuses  to  deliver  any 
more;  what  choice  has  the  miller,  except  to  retain  what  he  has  al- 
ready received?  This  kind  of  supposition  will  also  apply  to  the 
purchase  and  sale  of  all  other  kinds  of  articles,  where  the  purchaser 
on  receiving  them  changes  their  character  so  that  he  cannot  return 
them.  Or  suppose  that  an  owner  of  real  estate  employs  a  man  to 
build  or  repair  some  structure  thereon  for  a  gross  but  definite  sum, 
the  owner  of  the  real  estate  to  furnish  the  materials  or  a  portion 

^In  Asher  v.  Tomlinson,  60  S.  W.  714  (Ky.  1901),  plaintiff,  who  had  con- 
tracted to  complete  certain  services  at  $5  per  day,  wilfully  defaulted,  and  it 
Avas  held  that  his  measure  of  recovery  was  the  contract  rate,  subject  to  deduc- 
tion for  the  damages  sustained  by  the  employer;  the  court  stating  this  to  be 
the  Kentucky  rule. 


134  BENEFITS    CONFERRED    UNDER    CONTRACT. 

thereof  in  case  of  building,  and  either  to  furnish  them  in  case  of  re- 
pairing, and  the  job  is  only  half  finished  ;  what  choice  has  the  owner 
of  the  real  estate  with  reference  to  retaining  or  returning  the  pro- 
ceeds of  the  workman's  labor?  This  kind  of  supposition  will  also 
apply  to  all  kinds  of  work  done  on  real  estate,  and  will  often  apply  to 
work  done  on  personal  property.  Of  course,  in  all  cases  where  the 
employer  can  refuse  to  accept  the  work  and  does  refuse  to  accept  it 
or  returns  it,  he  is  not  bound  to  pay  for  it  unless  it  exactly  corre- 
sponds with  the  contract ;  but  where  he  receives  it  and  retains  it, 
whether  he  retains  it  from  choice  or  from  necessity,  he  is  bound  to 
pay  for  the  same  what  it  is  reasonably  worth,  less  any  damage  that  he 
may  sustain  by  reason  of  the  partial  non-fulfilment  of  the  contract. 
Of  course  he  is  not  bound  to  pay  anything  unless  the  work  is  worth 
something,  unless  he  receives  or  may  receive  some  actual  benefit 
therefrom ;  and  where  he  receives  or  may  receive  some  actual  benefit 
therefrom,  he  is  bound  to  pay  for  such  benefit  (and  only  for  such 
benefit),  within  the  limitations  hereinbefore  mentioned. 


Boise,  J.,  in  STEEPLES  v.  NEWTON. 
7  Ore.  iio,  112. — 1879. 

The  second  instruction  objected  to  is  as  follows :  "If  the  plaintiff 
abandoned  his  contract  without  cause  he  is  entitled  to  recover  the 
reasonable  value  of  his  labor,  subject  to  the  offset  by  the  damages 
sustained  by  defendant  by  reason  of  plaintiff's  non-performance 
of  his  contract." 

The  determination  of  the  propriety  of  this  instruction  presents  a 
vexed  question,  on  which  the  authorities  are  not  uniform.  The  cir- 
cuit court  seems  to  have  followed  the  rule  laid  down  in  the  text  in 
Parsons  on  Contracts,  vol.  2,  523,  which  is  supported  by  the  author- 
ity of  the  case  of  Britton  v.  Turner  (6  N.  H.  481),  where  it  was 
held  that  where  one  party,  without  the  fault  of  the  other,  fails  to 
perform  his  contract  for  labor  in  such  a  manner  as  to  enable  him 
to  sue  upon  it,  still,  if  the  party  for  whom  the  labor  is  performed 
has  derived  a  benefit  from  the  part  performed,  the  party  so  failing 
may  recover  the  reasonable  value  of  such  labor.  That  was  a  case 
of  indebitatus  assumpsit  for  work  and  labor,  "The  defendant  of- 
fered evidence  to  prove  that  the  work  was  done  under  a  contract 
to  work  for  one  year  for  the  sum  of  one  hundred  dollars,  and  that 
the  plaintiff  left  his  service  without  his  consent  and  without  good 
cause."  The  learned  judge  instructed  the  jury  that  although  all  the 
points  should  be  made  out,  yet  the  plaintiff  was  entitled  to  recover 
under  his  quantum  meruit  as  much  as  the  labor  performed  was  rea- 
sonably worth,  and  this  instruction  was  held  correct.  This  case 
seems  not  to  have  been  followed  in  other  states.     It  is  quoted  and 


BRKACII    OF    CONTRACT.  1 35 

discussed  in  the  case  of  Olmstead  v.  Beal  (19  Pick.  529),  where  the 
court  say  that  they  have  no  hesitancy  in  adherinj:^  to  the  rule  before 
estabhshed  in  Massachusetts,  which  is  supported  by  a  long  series 
of  adjudications.  It  was  held  in  the  case  of  Fenton  v.  Clark,  ii  Vt., 
where  the  plaintiff  contracted  with  the  defendant  to  labor  for  four 
months,  at  ten  dollars  per  month,  and  not  to  receive  any  pay  until  he 
had  worked  the  four  months,  and  before  the  time  was  out  became 
disabled  and  unable  to  perform  the  work ;  that  his  sickness,  being 
the  act  of  God,  the  contract  was  discharged,  and  he  could  recover 
the  reasonable  value  of  his  labor,  and  the  same  was  held  in  the  case 
of  Leaver  v.  Morse,  20  Vt.  620.  The  same  rule  is  also  held  in 
Massachusetts.  Fuller  v.  Brown,  11  Mass.  440,  and  Olmstead  v. 
Beal,  19  Pick.  529,  above  cited.  The  latter  rule  is  as  it  was  an- 
nounced by  this  court  at  this  term,  in  the  case  of  Tuboa  &  McPhee 
v.  J.  M.  Strowbridge,  where  the  decision  of  the  question  was  not 
necessary  to  a  determination  of  the  case  and  was  consequently  obiter. 
"That  where  one  performs  services  for  another  on  a  special  con- 
tract, and  for  any  reason  except  a  voluntary  abandonment,  fails  to 
fully  comply  with  his  contract  and  such  compliance  becomes  im- 
practicable, and  the  service  has  been  of  value  to  him  for  whom  it 
was  rendered,  he  may  recover  for  such  service  its  reasonable  value, 
after  deducting  therefrom  any  damages  the  party  for  whom  the 
service  was  performed  has  sustained  by  reason  of  such  failure." 

Since  deciding  that  case  we  have  more  fully  considered  this  very 
important  subject,  and  think  the  rule  here  laid  down  to  be  just  and 
reasonable,  and  it  is  supported  by  most  of  the  modern  authorities. 
To  adopt  the  rule  that  in  all  cases  a  party  shall  be  held  to  a  literal 
compliance  wath  his  special  contract  before  he  can  recover  anything 
for  labor,  is  too  harsh  and  would  often  be  unjust ;  and,  on  the  other 
hand,  to  hold  that  the  rule  as  stated  in  the  case  of  Britton  v.  Turner, 
6  N.  H.  481,  that  a  person  may  voluntarily  abandon  his  special 
contract  and  lose  nothing  thereby,  would  have  a  tendency  to  en- 
courage bad  faith  and  lessen  the  sacredness  of  solemn  obligations, 
which  it  is  the  duty  of  the  courts  to  uphold  and  enforce  so  far  as  the 
same  can  be  done  without  doing  manifest  injustice.  It  would  be  un- 
just to  require  a  total  performance  in  cases  where  the  party  in  default 
has  bestowed  his  labor  for  the  benefit  of  his  employer  and  fails  fully 
to  comply  with  the  terms  of  his  contract  from  some  accident  or  mis- 
fortune which  does  not  involve  wilful  neglect  or  abandonment  on 
his  part.  We  think,  therefore,  that  this  instruction  of  the  circuit 
court  was  incorrect  and  might  have  influenced  the  verdict  of  the 
jury  to  the  damage  of  the  appellant. 


136  BENEFITS    CONFERRED    UNDER    CONTRACT. 

SMITH  V.  BRADY. 
17  N.  Y.  173.— 1858. 

The  complaint  was  for  work  done  and  materials  furnished  upon 
the  land  of  the  defendant,  at  his  request,  to  the  value  of  $2,295.60. 
The  answer  averred  that  the  work  done  and  materials  furnished, 
with  the  exception  of  $295.60  charged  for  extra  work  and  materials, 
were  furnished  and  done  under  two  agreements  therefor,  executed 
by  the  parties  under  seal.  These  were  set  out  in  the  answer.  By 
them  the  plaintiff  agreed  with  the  defendant  to  furnish  materials 
and  construct  for  him,  and  upon  his  land,  three  cottages  with  out- 
houses and  fences.  The  work  was  to  be  done  in  accordance  with 
certain  plans  and  specifications,  except  when  otherwise  provided. 
It  was  to  be  done  in  the  best  and  most  workmanlike  manner,  and  to 
the  entire  satisfaction  of  certain  architects  who  were  named  in  the 
contract.  It  was  further  provided  that  in  case  of  any  extras  or 
omissions  in  the  work,  the  question  between  the  parties  in  relation 
thereto  should  be  submitted  to  the  same  architects,  and  their  de- 
cisions should  be  final  and  conclusive  in  the  matter.  For  this  work 
which  was  to  be  completed  before  May  i,  1851,  the  defendant 
agreed  to  pay  the  plaintiff  the  sum  of  $4,900,  on  which  a  part  was 
to  be  paid  from  time  to  time,  as  the  work  progressed,  and  the  bal- 
ance "zuhen  all  the  zvork  should  be  completed  and  certified  by  the 
architects  to  that  effect." 

The  trial  was  before  a  referee  who  found  that  there  were  omis- 
sions and  deficiencies  in  the  work  and  materials  which  the  contracts 
required  to  be  done  and  furnished  by  the  plaintiff,  and  that  the  loss 
to  the  defendant  thereby  amounted  to- $212.57;  that  the  plaintiff 
had  done  and  furnished  extra  work  and  materials  to  the  value  of 
$295,  and  that  the  defendant,  sometime  in  the  month  of  June,  1851, 
took  possession  of  the  three  cottages,  without  objection  at  the  time, 
and  appropriated  the  same  to  his  own  use.  He  reported  that,  after 
making  the  proper  allowances  and  deductions  to  the  parties  re- 
spectively, the  plaintiff  was  entitled  to  judgment  for  $1,934.43.  The 
questions  of  evidence  which  arose  upon  the  trial,  and  the  manner  in 
which  they  were  -disposed  of,  sufficiently  appear  in  the  following 
opinions.  The  judgment  entered  upon  the  report  of  the  referee 
was,  on  appeal,  affirmed  by  the  supreme  court,  at  general  term  in 
the  second  district,  and  the  defendant  appealed  to  this  court. 

CoMSToCK,  J. — *  *  *  *  We  are  therefore  obliged  to  consider 
this  question  of  law,  in  a  building  contract,  where  performance  is  to 
precede  payment  and  becomes  a  condition  thereof,  can  the  builder 
having  failed  to  perform  on  his  part,  recover  for  his  work  or  materi- 
als, making  to  the  other  party  a  compensatory  allowance  for  the 
wrong  done  to  him,  it  being  also  a  further  condition  of  the  question 
that  the  employer  chooses  to  occupy  and  enjoy  the  erection  rather 
than  to  remove  or  require  the  builder  to  remove  it  from  his  premises? 


BREACH    OF    CONTRACT.  137 

The  right  to  recover  in  such  a  case  has  never  been  referred  to  any 
doctrine  pecuhar  to  such  contracts.  On  the  contrary,  if  we  look  at 
the  adjudged  cases,  we  shaU  find  that  the  right,  whenever  asserted 
by  judicial  tribunals,  has  been  supposed  to  result  from  a  general 
doctrine  applicable  as  well  to  other  contracts.  In  Hayward  v.  Leon- 
ard (7  Pick.  181),  the  action  was  on  a  conditional  note,  to  be  void 
if  the  plaintiff  failed  to  perform  an  agreement  of  the  same  date,  by 
which  he  undertook  to  build  a  house  for  the  defendant  of  a  certain 
size  and  in  a  specified  manner.  The  defense  was  that  the  house, 
although  built  within  the  time  agreed  on,  was  not  in  workmanship 
and  materials  according  to  the  contract.  Chief  Justice  Parker 
said :  "The  point  in  controversy  seems  to  be  this :  whether,  where 
a  party  has  entered  into  a  special  contract  to  perform  work  for  an- 
other and  to  furnish  materials,  and  the  work  is  done  and  the  ma- 
terials furnished,  but  not  in  the  manner  stipulated  for  in  the  con- 
tract, so  that  he  cannot  recover  the  price  agreed  by  action  on  that 
contract,  yet,  nevertheless,  the  work  and  materials  are  of  some  value 
and  benefit  to  the  other  contracting  party,  he  may  recover  on  a 
quantum  meruit  for  the  labor,  and  on  a  quantum  zvlebant  for  the 
materials."  He  adds :  "We  think  the  weight  of  modern  authority 
is  in  favor  of  the  action,  and  that,  upon  the  whole,  it  is  conformable 
to  justice  that  the  party  who  has  the  possession  and  enjoyment  of 
the  labor  and  materials  of  another  shall  be  held  to  pay  for  them,  so 
as  in  all  events  he  shall  lose  nothing  by  the  breach  of  the  contract." 
In  that  case  there  were  some  special  facts,  but  the  decision  seemed 
to  turn  essentially  on  the  general  principle  suggested  in  the  remarks 
quoted,  and  the  principle  was  more  emphatically  approved  by  the 
same  court  in  the  subsequent  case  of  Smith  v.  The  First  Congrega- 
tional Meeting  House  in  Lowell,  8  Pick.  178,  which  was  also  upon  a 
building  contract. 

It  will  be  convenient  next  to  cite  a  case  directly  opposed  which 
arose  in  the  English  Common  Pleas,  and  was  tried  before  Sir  James 
Mansfield.  Ellis  v.  Hamlin,  3  Taunt.  52.  The  action  was  by  a 
builder  against  his  employer.  The  defense  was,  and  the  evidence 
supported  it,  that  the  plaintiff  had  omitted  to  put  into  the  building 
certain  joists  and  other  materials.  The  plaintiff  failing  to  prove 
performance  of  the  special  agreement  resorted  to  a  general  count 
for  work,  labor  and  materials,  claiming  that  the  defendant,  having 
the  benefit  of  the  houses,  was  bound  at  least  to  pay  for  them  accord- 
ing to  their  value.  But  Chief  Justice  Mansfield  repudiated  that 
doctrine.  He  said :  "The  defendant  agreed  to  have  a  building  of 
such  and  such  dimensions.  Is  he  to  have  his  ground  covered  with 
buildings  of  no  use,  which  he  would  be  glad  to  see  removed,  and  is 
he  to  be  forced  to  pay  for  them  besides?  It  is  said  he  has  the  benefit 
of  the  houses,  and  therefore  the  plaintiff  is  entitled  to  recover  on  a 
quantum  valebant.  To  be  sure  it  is  hard  that  he  should  build  houses 
and  not  be  paid  for  them,  but  the  difficulty  is  to  know  where  to  draw 
the  line,  for  if  the  defendant  is  obliged  to  pay  for  one  deviation 
from  his  contract  he  may  equally  be  obliged  to  pay  for  anything 


138  BENEFITS    CONFERRED    UNDER    CONTRACT. 

how  far  soever  distant  from  what  the  contract  stipulated  for."  The 
plaintiff  was  accordingly  non-suited ;  and  as  the  reporter  states,  the 
case  was  never  moved  again. 

The  two  cases  in  IMassachusetts  above  cited,  and  the  one  before 
Sir  James  Mansfield,  were  referred  to  in  Britton  v.  Turner,  6  N. 
H,  481.  That  was  a  very  elaborately  considered  case.  The  plaintiff 
had  agreed  to  work  for  the  defendant  for  one  year,  and  the  defend- 
ant was  to  pay  for  that  labor  one  hundred  and  twenty  dollars.  The 
plaintiff  abandoned  his  contract  without  cause  before  the  year  was 
out.  It  was  nevertheless  held  that  he  could  recover  as  much  as  the 
labor  was  reasonably  worth,  there  being  no  evidence  of  any  special 
damages  sustained  by  the  defendant  in  consequence  of  the  non-per- 
formance of  the  contract.  The  two  cases  in  Massachusetts  were 
cited  with  approbation  by  the  court,  while  that  before  Chief  Justice 
Mansfield  was  necessarily  disapproved.  In  referring  to  that  class  of 
cases  arising  on  building  contracts,  it  was  observed  that  such  cases 
could  not  be  distinguished  from  the  one  then  under  consideration 
"unless  it  be  in  the  circumstance  that  when  a  party  has  contracted 
to  furnish  materials  and  do  certain  labor,  as  to  build  a  house  in  a 
specified  manner,  if  it  is  not  done  according  to  the  contract  the 
party  for  whom  it  is  built  may  refuse  to  receive  it,  elect  to  take 
no  benefit  from  what  has  been  performed,  and  therefore  if  he  does 
receive  it  he  shall  be  bound  to  pay  the  value,  whereas  in  a  contract 
for  labor  merely,  from  day  to  day,  the  party  is  continually  receiving 
the  benefit  of  the  contract  under  an  expectation  that  it  will  be  fulfilled, 
and  cannot  upon  the  breach  of  it  have  an  election  to  refuse  to  receive 
what  has  been  done,  and  thus  discharge  himself  from  payment." 
"But  we  think,"  the  court  proceed  to  say,  "this  difference  in  the  na- 
ture of  the  contracts  does  not  justify  the  application  of  a  different 
rule  in  relation  to  them."  "There  was  just  as  much  reason,"  it  was 
added,  "why  the  employer  should  pay  the  reasonable  worth  of  what 
has  been  done  for  his  l3enefit  as  there  is  when  he  enters  and  occu- 
pies the  house  which  has  been  built  for  him  but  not  according  to  the 
stipulations  of  the  contract,  and  which  he  perhaps  enters,  not  be- 
cause he  is  satisfied  with  what  has  been  done,  but  because  circum- 
stances compel  him  to  accept  it  such  as  it  is,  that  he  should  pay  for 
the  value  of  the  house."  There  are  few  cases  to  be  found  in  the 
books  more  consistently  reasoned  than  this  one  in  the  supreme  court 
of  New  Hampshire,  although  the  decision  stands  directly  opposed 
to  the  settled  law  of  this  state.  I  have  referred  to  it,  as  well  as  the 
Massachusetts  cases,  somewhat  at  large,  in  order  to  show  that  the 
supposed  liability  of  a  person  who  enters  and  occupies  a  building 
erected  on  his  ground  to  pay  the  builder,  although  the  latter  failed 
in  performing  his  contract,  has  always  been  referred  to  the  general 
doctrine  that  benefits  received  and  retained  under  a  contract  must 
be  paid  for  without  regard  to  the  conditions  of  the  contract  itself. 
I  am  confident  that  no  case  can  be  found  in  which  the  building  con- 
tractor's right  to  recover  has  been  maintained  on  the  ground  that 


EREACII    OF    CONTRACT.  139 

the  owner,  by  the  mere  possession  and  occupancy  of  the  building, 
has  waived  the  condition  of  performance. 

The  true  inquiry  then  is,  whether  there  is  in  the  law  of  contracts 
in  general  any  such  doctrine  as  that  upon  which  the  cases  referred 
to  in  New  Hampshire  and  Massachusetts  were  determined.  To  those 
cases  others  might  be  added  proceeding  essentially  on  the  same 
ground ;  yet  the  rule,  I  think,  is  quite  well  settled  the  other  way. 
It  is  certainly  so  in  this  state.  IMclMillan  v.  Vanderlip,  12  Johns. 
165;  Thorp  V.  White,  13  id.  53;  Jennings  v.  Camp,  id.  94;  Champ- 
lin  V.  Rowley,  13  Wend.  258;  s.  c.  in  error,  18  id.  187;  Paige  v. 
Ott,  5  Denio  406 ;  Pike  v.  Butler,  4  Comst.  360 ;  Pullman  v.  Corn- 
ing, 5  Seld.  93.  Among  these  cases,  Champlin  v.  Rowley  may  be 
referred  to  as  a  decisive  determination  of  the  question.  The  action 
was  to  recover  the  price  of  hay  sold  and  delivered.  The  plaintiff  had 
agreed  to  deliver  to  the  defendant  one  hundred  tons  of  pressed  hay 
between  the  date  of  the  contract  and  the  close  of  navigation  on  the 
Hudson  river,  $100  to  be  paid  in  advance  and  the  residue  wdien  the 
whole  should  be  delivered  About  fifty  tons  were  delivered  before 
the  navigation  closed,  when  the  further  delivery  was  interrupted. 
The  defendant  sold  or  used  the  quantity  which  he  received  under  the 
contract.  The  $100  due  in  advance  having  been  paid,  it  was  held 
by  the  supreme  court  that  entire  performance  was  the  condition  of 
any  further  payment,  and  therefore  that  the  plaintiff  could  not  re- 
cover. The  case  was  very  carefully  considered,  on  error,  in  the 
court  of  last  resort,  where  the  judgment  was  affirmed.  The  case 
cited  in  the  Supreme  Court  of  New  Hampshire  was  referred  to,  and 
that,  as  well  as  the  class  of  cases  to  which  it  belongs,  were  expressly 
overruled.  Indeed,  in  this  state  the  sanctity  of  contracts,  in  this  re- 
spect at  least,  has  been  steadily  maintained,  and  no  encouragement 
has  ever  been  given  to  that  loose  and  dangerous  doctrine  which  al- 
lows a  person  to  violate  his  most  solemn  engagements  and  then  to 
draw  the  injured  party  into  controversy  concerning  the  amount  and 
value  of  the  benefits  received. 

I  think  the  principles  which  have  with  us  been  so  uniformly  as- 
serted should  have  a  peculiar  application  in  contracts  like  the  one 
under  consideration.  I  suppose  it  will  be  conceded  that  every  one 
has  a  right  to  build  his  house,  his  cottage  or  his  store  after  such  a 
model  and  in  such  style  as  shall  best  accord  with  his  notions  of 
utility  or  be  most  agreeable  to  his  fancy.  The  specifications  of  the 
contract  become  the  law  between  the  parties  until  voluntarily 
changed.  If  the  owner  prefers  a  plain  and  simple  Doric  column, 
and  has  so  provided  in  the  agreement,  the  contractor  has  no  right 
to  put  in  its  place  the  more  costly  and  elegant  Corinthian.  If  the 
owner,  having  regard  to  strength  and  durability,  has  contracted 
for  walls  of  specified  materials  to  be  laid  in  a  particular  manner,  or 
for  a  given  number  of  joists  and  beams,  the  builder  has  no  right  to 
substitute  his  own  judgment  for  that  of  others.  Having  departed 
from  the  agreement,  if  performance  has  not  been  waived  by  the 
other  party,  the  law  will  not  allow  him  to  allege  that  he  has  made 


140  BENEFITS    CONFERRED    UNDER    CONTRACT. 

as  good  a  building  as  the  one  he  engaged  to  erect.  He  can  demand 
payment  only  upon  and  according  to  the  terms  of  his  contract,  and 
if  the  conditions  on  which  payment  is  due  have  not  been  performed, 
then  the  right  to  demand  it  does,  not  exist.  To  hold  a  different 
doctrine  would  be  simply  to  make  another  contract,  and  would  be 
giving  to  parties  an  encouragement  to  violate  their  engagements, 
which  the  just  policy  of  law  does  not  permit. 

Cases  of  this  kind  must  not  be  confounded  with  others  having, 
perhaps,  a  slight  resemblance  but  no  real  analogy.  No  doubt  a  per- 
son may  voluntarily  accept  a  benefit  under  a  contract  of  which  the 
conditions  precedent  have  not  be^n  performed  by  the  other  party, 
and  he  may  do  this  in  such  circumstances  that  a  new  obligation  to 
pay  for  the  benefit  will  arise.  Thus,  if  A.  should  agree  to  manufac- 
ture and  deliver  to  B.  a  carriage  of  a  particular  kind  and  should 
make  a  different  one,  B.  may  elect  whether  he  will  take  it  or  not. 
Until  he  so  elects,  he  has  no  property  in  the  fabric.  If  he  volun- 
tarily accepts  the  article,  he  thereby  either  waives  the  objections 
which  he  might  make  to  it  and  is  liable  to  pay  for  it  according  to 
his  contract,  or  a  new  assumpsit  arises  from  the  act  of  acceptance 
as  though  no  previous  agreement  had  existed.  The  case  cited  on 
the  argument  of  Vanderbilt  v.  The  Eagle  Iron  Works,  25  Wend. 
665,  was  determined  very  distinctly  upon  these  principles. 

But  the  rule,  as  it  is  well  settled  with  us,  allows  a  party  to  re- 
tain without  compensation  the  benefits  of  a  partial  performance, 
where,  from  the  nature  of  the  contract,  he  must  receive  such  bene- 
fits in  advance  of  a  full  performance,  and  by  its  terms  or  just  con- 
struction he  is  under  no  obligation  to  pay  until  the  performance  is 
complete.  Thus,  if  a  person  engages  to  perform  a  year's  labor  for 
another  and  payment  is  to  be  made  when  the  labor  is  done,  in  such 
a  case  the  employer  necessarily  receives  the  benefit  of  each  day's 
service  when  it  is  done,  yet  if  the  laborer  without  just  cause,  aban- 
dons the  service  at  any  time,  however  short,  before  the  year  has  ex- 
pired he  can  recover  no  part  of  his  wages.  (Cases,  supra.)  So  the 
contract  may  be  to  sell  and  deliver  goods  at  different  times,  to  be 
paid  for  when  the  whole  are  received.  If  the  vendor  refuses  to 
perform  entirely  without  good  cause,  the  purchaser  is  neither  bound 
to  pay  for  nor  to  return  the  goods  received  in  part  performance. 
Champlin  v.  Rowley,  supra.  If  A.  should  agree  to  plow  a  field  of 
B.,  consisting  of  twenty  acres,  at  a  given  price  for  the  whole  serv- 
ice, or  at  so  much  per  acre,  to  be  paid  when  the  service  is  done,  and 
after  plowing  nineteen  acres  should  abandon  the  contract,  he  can 
recover  nothing  for  his  work.  The  owner  of  the  field  may  enter, 
sow  it  with  grain  and  reap  the  harvest,  thus  enjoying  fully  the  bene- 
fits of  the  part  performance.  In  so  doing  he  waives  nothing;  be- 
cause he  cannot  reasonably  do  otherwise.  He  is  not  obliged  to 
abandon  his  field  in  order  to  be  enabled  to  insist  upon  the  condition 
of  the  contract.  Closely  analogous  is  the  case  of  a  building  con- 
tract. The  owner  of  the  soil  is  always  in  possession.  The  builder 
has  a  right  to  enter  only  for  the  special  purpose  of  performing  his 


BREACH    OF    CONTRACT.  I4I 

contract.  Each  material  as  it  is  placed  in  the  work  becomes  an- 
nexed to  the  soil,  and  thereby  the  property  of  the  owner.  The  builder 
would  have  no  right  to  remove  the  brick  or  stone  or  lumber  after 
annexation,  even  if  the  employer  should  unjustifiably  refuse  to  al- 
low him  to  proceed  with  the  work.  The  owner,  from  the  nature 
and  necessity  of  the  case,  takes  the  benefit  of  part  performance, 
and  therefore  by  merely  so  doing  does  not  necessarily  waive  any- 
thing contained  in  the  contract.  To  impute  to  him  a  voluntary 
waiver  of  conditions  precedent  from  the  mere  use  and  occupation 
of  the  building  erected,  unattended  by  other  circumstances,  is  un- 
reasonable and  illogical  because  he  is  not  in  a  situation  to  elect 
whether  he  will  or  will  not  accept  the  benefit  of  an  imperfect  per- 
formance. To  be  enabled  to  stand  upon  the  contract  he  cannot  rea- 
sonably be  required  to  tear  down  and  destroy  the  edifice  if  he  pre- 
fers it  to  remain.  As  the  erection  is  his  by  annexation  to  the  soil 
he  may  suffer  it  to  stand,  and  there  is  no  rule  of  law  against  his 
using  it  without  prejudice  to  his  rights. 

The  present  case  was  evidently  tried  upon  an  erroneous  theory 
of  the  law.  Although  partial  payments  were  to  be  made  as  the  work 
proceeded  under  the  contracts,  yet  the  consideration  and  condition 
of  those  payments  was  the  performance  of  the  work  according  to 
the  plans  and  specifications,  and  in  the  best  and  most  workmanlike 
manner,  and  the  final  payments  were  not  to  be  made  until  after  all 
the  work  w^as  completed  and  certified  by  the  architects.  Although 
the  contracts  were  not  performed,  the  plaintiiT  has  recovered  all  the 
instalments,  less  the  sum  which  the  referee  allowed  as  damages  for 
the  non-performance.  In  receiving  the  evidence  as  to  the  value  and 
strength  of  the  buildings,  notwithstanding  non-performance  of  the 
contracts,  evidence  which  could  have  no  bearing  except  upon  the 
question  of  damages,  it  is  manifest  that  he  proceeded  upon  views 
of  the  law  in  such  cases  which  I  have  endeavored  to  show  are  un- 
sound. 

It  is  not  necessary  to  give  any  opinion  upon  the  question  whether 
the  referee  might  properly  find  upon  the  evidence  that  the  defendant 
waived  the  conditions  of  the  contract  by  any  express  approval  of 
the  work,  or  by  any  other  interference  or  conduct  on  his  part.  We 
only  say  that,  according  to  the  settled  law  of  this  state,  the  plain- 
tiff cannot  recover  the  payments  which  by  the  terms  or  true  con- 
struction of  the  contract  are  due  only  on  condition  of  performance 
by  him,  unless  he  can  show  such  performance  or  prove  that  it  has 
been  waived.  And  the  lav/  does  not  adjudge  that  a  mere  silent  oc- 
cupation of  the  building  by  the  owner  amounts  to  a  waiver,  nor 
does  it  deny  to  him  the  right  so  to  occupy  and  still  insist  upon  the 
contract.  The  question  of  waiver  of  the  condition  precedent  will 
always  be  one  of  intention  to  be  arrived  at  from  all  the  circum- 
stances, including  the  occupancy. 

To  conclude,  there  is,  in  a  just  view  of  the  question,  no  hardship 
in  requiring  builders,  like  all  other  men,  to  perform  their  contracts 
in  order  to  entitle  themselves  to  payment,  where  the  employer  has 


A 

*I42  BENEFITS    CONFERRED    UNDER    CONTRACT. 

agreed  to  pay  only  on  that  condition.  It  is  true  that  such  contracts 
embrace  a  variety  of  particulars,  and  that  slight  omissions  and  in- 
advertences may  sometimes  very  innocently  occur.  These  should 
be  indulgently  regarded,  and  they  will  be  so  regarded  by  courts  and 
juries.  But  there  can  be  no  injustice  in  imputing  to  the  contractor 
a  knowledge  of  what  his  contract  requires,  nor  in  holding  him  to  a 
substantial  performance.  If  he  has  stipulated  for  walls  of  a  given 
material  and  with  a  hard  inside  finish,  he  knows  what  he  is  to  do 
and  mu?t  perform  it.  If  he  has  engaged  for  a  given  number  and 
size  of  windows,  joists,  beams  and  sills,  he  cannot,  with  the  specifi- 
cations before  him,  innocently  depart  from  his  contract.  If  he  fails 
to  perform  when  the  requirement  is  plain,  and  when  he  can  perform 
if  he  will,  he  has  no  right  to  call  upon  the  courts  to  make  a  new 
contract  for  him ;  nor  ought  he  to  complain  if  the  law  leaves  him 
without  remedy. 

The  judgment  should  be  reversed  and  a  new  trial  granted. 

All  the  judges  concurred  in  this  opinion. 

Judgment  reversed  and  a  new  trial  ordered.^ 

[There  was   another  opinion  by  Harris,   J.,  in  which   Selden, 
Denio,  Roosevelt  and  Pratt,  JJ.,  concurred.] 


FEENEY  V.  BARDSLEY. 

66  N.  J.  L.  239. — 1901. 

Van  Syckel,  J. — This  suit  was  brought  by  Feeney,  the  defend- 
ant in  error,  to  recover  the  balance  alleged  to  be  due  to  him  upon 
a  building  contract.  The  plaintiff  in  error  relies  for  reversal  upon 
alleged  errors  in  the  charge  of  the  trial  court.  The  trial  judge 
charged  that,  if  the  contractor  did  not  substantially  comply  with 
the  contract,  he  could  not  recover.  He  told  the  jury  that,  if  a 
builder  contracts  to  erect  a  two-story  and  a  half  house,  and  he 
erects  only  a  one  story  and  a  half  house,  he  cannot  recover,  al- 
though he  has  added  value  to  the  owner's  property.  But,  if  the 
contractor  has  substantially  performed  his  contract,  even  though 
he  has  failed  to  do  so  in  some  minor  particulars,  he  is  entitled 
to  recover  the  corrtract  price,  less  what  will  be  a  fair  allowance 
to  the  owner  to  make  good  the  defects  in  the  performance  of 
the  contract.  The  court  further  charged  that,  if  there  was  not  a 
substantial  compliance  with  the  contract,  the  jury  could  find  a  ver- 
dict for  the  contractor  for  what  the  building  was  reasonably  worth, 
if  the  owner  had  accepted  the  house ;  but  that  in  determining  the 
question  of  acceptance  it  was  not  sufficient  to  find  that  the  owner 

'Accord,  Malbon  v.  Birncy,  11  Wis.  112  (i860)  ;  Brewer  v.  Tysor,  3  Jones 
Law  (N.  C)  180  (1855);  Sumpter  v.  Hedges,  [1898]  i  Q.  B.  673.  These 
were  all  construction  contracts. 


. 


BREACH    OF    CONTRACT.  I43 

was  occupying  it.  It  is  a  house  built  upon  hi*:  land,  and,  unless 
he  tears  it  down,  he  must  make  some  use  of  it,  so  that  the  jury 
must  find  some  positive  act  on  his  part  showing  an  intention  to  ac- 
cept it.  This  instruction  to  the  jury  is  strictly  in  accordance  with 
the  views  expressed  by  Mr.  Justice  Magie  in  the  supreme  court  in 
Bozarth  v.  Dudley,  44  N.  J.  Law  304,  43  Am.  Rep.  373.  Since  the 
publication  of  that  decision  it  has  been  applied  in  the  trial  of  similar 
issues,  and  it  has  been  cited  with  approbation  in  this  court  in 
Mackinson  v.  Conlon,  55  N.  J.  Law  564,  27  Atl.  930.  In  this  respect 
there  is  no  error  in  the  charge  of  the  trial  court.     *     *     *     * 


McCLAY  V.  HEDGE. 
18  Iowa  66. — 1864. 

Action  on  contract.  The  cause  was  referred  to  a  referee,  who 
reported  that  the  plaintiff  agreed  to  build  for  the  defendant  a  barn, 
shed  and  corn  crib,  under  a  special  contract  for  $105,  and  to  have  it 
completed  by  a  specified  time.  That  the  plaintiff  "failed  to  complete 
the  barn  by  the  contract  time,  and  also,  failed  to  do  all  of  said  job 
in  good  and  workmanlike  manner,"  and  he  specifies  certain  particu- 
lars in  which  the  failure  consisted,  after  which  the  referee  further 
finds  "that  it  is  worth  and  will  cost  the  sum  of  %2y  to  make  the  work 
above  enumerated  good,"  that  is,  comply  with  the  contract ;  that  the 
defendant  has  paid  plaintiff  $55  to  apply  on  the  $105  (the  contract 
price),  leaving  due  to  the  plaintiff  %2;^,  for  which  he  finds  the  plain- 
tiff entitled  to  recover.  This  report  was  confirmed,  judgment 
rendered  accordingly,  and  the  defendant  appeals. 

Dillon,  J. — i.  This  cause  does  not  involve  much  in  amount,  but 
yet  presents  a  legal  question  of  the  highest  importance,  and  one 
in  relation  to  which  the  best  jurists  and  the  ablest  legal  thinkers 
almost  radically  differ.  It  is  found  by  the  referee  that  the  plain- 
tiff has  not  performed  in  full  his  contract.  It  is  not  found  that  the 
defendant  waived,  prevented  or  dispensed  with  its  performance. 
Not  having  performed  the  special  contract,  he  cannot  recover  (so 
all  of  the  authorities  agree)  on  the  contract.  Eiser  v.  Weissgerber, 
2  Iowa  463,  483,  and  cases  cited ;  Corwin  v.  Wallace,  17  Id.  374, 
referring  to  previous  adjudications  ot  the  same  case.  The  con- 
troversy is,  whether  in  such  a  case  he  may  recover  as  upon  a  quantum 
meruit.  The  question  was  settled  in  this  state  by  the  case  of  Pixler 
v.  Nichols,  8  Iowa  106,  wdiich  distinctly  recognized  and  expressly 
followed  the  case  of  Britton  v.  Turner,  6  N.  H.  481.  That  cele- 
brated case  has  been  criticised,  doubted  and  denied  to  be  sound. 
It  is  frequently  said  to  be  good  equity  but  bad  law.  Yet  its  prin- 
ciples have  been  gradually  winning  their  way  into  professional 
and  judicial  favor.     It  is  bottomed  un  justice,  and  is  right  upon 


144  BENEFITS    CONFERRED    UNDER    CONTRACT. 

principle,  however  it  may  be  upon  the  technical  and  more  illiberal 
rules  of  the  common  law  as  found  in  the  older  cases.  With  the 
known  and  natural  disposition  of  courts  and  juries  to  disfavor  the 
cause  of  him  who  has  broken  his  contract,  and  yet  seeks  a  re- 
covery, and  with  the  limitation  stated  in  Pixler  v.  Nichols,  the 
application  of  this  rule  will  not  be  found  practically  to  work  in- 
justice to  the  employer  or  contracting  party,  who  is  without  fault. 
This  rule  will  apply  to  such  cases  as  the  one  under  consideration,  a 
formal  acceptance  of  the  work,  or  an  acquiescence  in  the  breach,  is 
not  necessarily  essential  to  a  recovery.  But  the  defendant  contends 
that  the  plaintiff  can  only  recover  so  much  of  the  contract  price  as 
remains  after  deducting  what  it  will  cost  to  make  and  complete  the 
work  as  he  agreed.  Granted.  The  report  of  the  referee  shows  that  he 
recognized  this  rule  by  deducting  from  the  contract  price  what  it 
was  worth  and  would  cost  to  complete  the  contract  work.   *   *   *   * 

Affirmed.^ 


TIPTON  V.  FEITNER. 

20  N.  Y.  423. — 1859. 

Appeal  from  the  Supreme  Court.  Action  to  recover  the  price 
of  certain  slaughtered  hogs,  sold  by  the  plaintiffs  to  the  defendant. 
It  was  defended  on  the  ground  that  they  were  purchased  under  a 
special  contract  with  the  plaintiffs,  which  had  been  violated  on  their 
part.  The  case,  according  to  the  finding  of  the  referee,  before 
whom  it  was  tried,  was  as  follows :  On  the  3d  day  of  February, 
1855,  at  the  city  of  New  York,  the  plaintiffs  agreed  with  the  de- 
fendant, by  parol,  by  one  and  the  same  contract,  to  sell  the  de- 
fendant eighty-eight  dressed  hogs,  then  at  the  slaughter-house  of  a 
third  person,  in  the  city,  at  7  cents  per  pound ;  and  also  certain  live 
hogs  of  the  plaintiffs,  which  were  being  driven,  and  were  then  on 
their  way  from  the  state  of  Ohio  to  New  York,  at  5^4  cents  per 
pound  live  weight,  the  defendant  agreeing  on  his  part  to  buy  the 
dressed  and  live  hogs  at  these  prices.  The  dressed  hogs  were  to 
be  delivered  immediately  after  the  sale,  and  the  live  ones  on  their 
arrival  at  the  city,  where  they  were  expected,  and  did  arrive  some 
days  afterward.  The  dressed  hogs  were  delivered  on  the  same  day, 
but  were  not  paid  for  by  the  defendant.  The  live  hogs  arrived  five 
days  afterward ;  they  were  not  delivered  to  the  defendant,  but 
were  slaughtered  by  the  plaintiffs,  and  by  them  sold  to  other 
parties.     The   defendant   insisted  that  the  plaintiffs   could  not   re- 

'  In  Gillis  V.  Cobe,  177  ATass.  584,  592  (1901)  it  seems  that  where  a  con- 
tractor, when  acting  in  good  faith,  has  defauUed  on  a  building  contract,  and 
not  substantially  performed  it,  he  may  recover  the  amount  by  which  the 
value  of  the  land  has  been  enhanced  by  the  incomplete  building.  The  case 
reviews  the  Massachusetts  authorities. 


BREACH    OF    CONTRACT.  I45 

cover  for  the  dressed  hogs,  on  the  ground  that  they  had  failed  to 
perform  their  agreement  as  to  the  Uve  ones.  The  referee,  however, 
held  that  the  plaintiffs  were  entitled  to  recover  the  price  of  the 
dressed  hogs,  deducting  the  damages  which  the  defendant  had  sus- 
tained for  the  breach  of  the  other  branch  of  the  contract ;  and  he 
reported  accordingly.  The  dressed  hogs  came  to  $1,182.57;  de- 
ducted for  defendant's  damages,  $401,  leaving  $780.38,  for  which 
judgment  was  given,  which  was  affirmed  at  a  general  term.  The  de- 
fendant appealed. 

Selden,  J. — It  is  said  that  the  plaintiffs  cannot  recover  for  the 
dressed  hogs  actually  delivered,  because  they  failed  to  deliver  the 
live  hogs  on  their  arrival  in  New  York,  the  delivery  of  the  latter 
being,  as  it  is  insisted,  a  condition  precedent  to  the  right  of  the 
plaintiffs  to  claim  payment  for  the  former.  This  consequence  is 
supposed  to  follow,  from  the  finding  of  the  referee  that  the  plaintiffs 
agreed  to  sell  both  live  and  the  dressed  hogs  "in  one  and  the  same 
contract." 

But  it  by  no  means  follows,  because  a  party  has  agreed  to  do 
several  things  by  one  and  the  same  contract,  that  performance  of 
the  contract  in  all  its  parts  is  a  condition  precedent  to  any  right  to 
claim  payment  for  the  portion  which  may  have  been  done.  Were  this 
so,  there  could  be  no  such  thing  as  "independent  covenants"  in  any 
contract.  It  is  always  a  question  of  construction,  depending  upon 
the  terms  of  the  contract,  its  subject  matter,  and  the  circumstances 
under  which  it  was  made,  whether  there  is  a  condition  precedent 
or  not.  There  are  certain  well-established  legal  principles  which 
seem  to  me  decisive  of  this  question  in  the  present  case.  It  is  plain 
of  itself  and  well  settled  by  authority,  that  when  by  the  terms  of  a 
contract  a  payment  by  one  party  is  to  precede  some  act  to  be  done 
by  the  other,  then  the  performance  of  the  act  cannot  be  treated  as 
a  condition  of  the  payment ;  as  in  the  case  of  contracts  for  the  sale 
and  conveyance  of  lands,  where  payments  are  to  be  made  before  the 
time  fixed  for  the  conveyance. 

Again,  it  is  equally  well  settled,  that  where,  upon  the  sale  of 
goods,  no  other  time  is  fixed,  payment  is  to  be  made  when  the 
goods  are  delivered ;  and  the  vendor  is  under  no  obligation  to  de- 
liver them  without  such  payment.  There  is  nothing  in  the  present 
case  which  is  at  all  indicative  of  an  intention  to  give  a  credit  to  the 
defendant.  If  the  contract  had  been  to  deliver  articles  of  a  per- 
fectly homogeneous  nature  at  different  times,  but  at  a  uniform  price, 
there  might  possibly  be  some  ground  for  holding  that  the  delivery 
of  the  whole  was  to  precede  any  payment  for  the  portion  delivered. 
But  even  in  that  case,  the  authorities  show  that  there  must  be  some- 
thing in  the  terms  of  the  contract,  from  which  the  intention  to 
make  the  delivery  of  the  whole  a  condition,  may  be  implied. 

Thus,  in  the  case  of  Withers  v.  Reynolds,  2  Barn.  &  Adol.  882, 
where  the  agreement  was  to  supply  the  plaintiff  with  wheat  straw 
of  good  quality,  sufficient  for  his  use  as  stable-keeper,  and  delivered 
Woodruff's  Cases — 10 


146  BENEFITS    CONFERRED    UNDER    CONTRACT. 

on  his  premises,  at  the  rate  of  three  loads  in  a  fortnight,  up  to  a 
certain  period,  at  the  price  of  33s.  per  load  of  thirty-six  trusses ;  the 
plaintiff  agreeing  to  pay  for  each  load  at  that  rate,  it  was  held  that 
the  plaintiff  was  bound  to  pay  for  the  loads  as  they  were  delivered. 
All  the  straw  was  to  be  delivered,  in  that  case,  under  "one  and  the 
same  contract ;"  and,  moreover,  the  defendant  had  positively  agreed 
by  that  contract,  to  supply  the  plaintiff  with  straw  for  a  certain 
length  of  time — an  agreement  which  he  refused  to  fulfil ;  and  yet 
it  was  held  that  performance  in  this  respect  was  not  essential  to  his 
right  to  claim  payment  for  the  straw  actually  delivered. 

As  the  effect  of  a  condition  precedent  is  to  prevent  the  court 
from  dealing  out  justice  to  the  parties  according  to  the  equity  of  the 
case,  it  is  not  surprising  that  we  find  it  so  frequently  said  that  con- 
structions productive  of  such  conditions  are  not  to  be  encouraged. 
Parties  must  be  held  strictly  to  their  contracts ;  and  where  they 
have  agreed  in  terms  or  by  plain  implication  to  a  condition  which  is 
to  bar  them  of  a  recovery  according  to  what  is  equitable  and  just, 
they  must  abide  by  the  consequences.  But  courts  are  to  see  that 
such  was  the  intention  of  the  parties,  before  they  are  held  up  to  so 
rigid  a  rule. 

The  contract  in  this  case,  although  "one  and  the  same,"  is  by  no 
means  indivisible.  On  the  contrary,  it  consists  of  two  distinct 
parts,  having  no  necessary  connection,  except  that  they  were  made 
at  the  same  time.  Each  portion  of  the  contract  is  complete  of  itself 
without  reference  to  the  other.  On  what,  then,  are  we  to  predicate 
an  assumption,  that  its  separate  branches  were  intended  to  be  de- 
pendent upon,  rather  than  independent  of  each  other  ? 

The  implication  must  be  plain  and  unmistakable  to  justify  such 
a  conclusion,  as  its  effect  would  be  to  impose  upon  the  plaintiff  a 
heavy  penalty  or  forfeiture.  If  the  time  for  the  delivery  of  the  live 
hogs  had  been  definitely  fixed,  it  might  be  more  reasonable  to  sup- 
pose that  the  plaintiffs  were  to  wait  for  payment  for  the  dressed 
hogs  until  that  time.  But  the  former  had  not  arrived ;  their  arrival 
might  be  delayed ;  they  might  never  arrive ;  and  yet  the  conclusion 
contended  for  supposes  the  plaintiff  to  have  consented  to  give  this 
indefinite  kind  of  credit  for  a  marketable  article,  which  would  have 
commanded  the  money  any  day  at  the  market  price. 

It  is  urged  that  the  referee,  by  finding  that  the  whole  agreement 
was  by  "one  aijd  the  same  contract,"  has  virtually  found  that  the 
contract  was  entire  and  indivisible,  and  that  this  finding  settles  the 
question.  But  whether  the  contract  was  indivisible  or  not,  the  terms 
of  the  contract  being  given,  it  is  a  question  of  law,  upon  which 
the  finding  of  the  referee  is  not  conclusive.  Such,  however,  is  not 
the  true  construction  of  the  finding.  It  evidently  is  not  the  construc- 
tion put  upon  it  by  the  referee  himself,  because  he  held  that  the 
plaintiffs  could  recover.  All  that  is  meant  by  the  finding  is,  that 
the  whole  agreement,  consisting  of  different  parts,  was  made  at  one 
and  the  same  time. 


BREACH    OF    CONTRACT.  1 47 

In  my  view  the  contract  was  plainly  divisible,  and  the  judgment  of 
the  Supreme  Court  should  therefore  be  affirmed. 

Johnson,  Ch.  J.,  Comstock,  Gray,  Grover  and  Strong,  JJ., 
concurred ;  Allen,  J.,  expressed  no  opinion. 

Denio,  J. —  [In  concurring-  said]  *  *  *  *  There  is  another 
class  arising  out  of  contracts  for  services,  where  the  party  em- 
ployed agreed  to  serve  for  a  fixed  period,  or  to  execute  a  particular 
work,  and  was  to  be  paid  by  the  week  or  month,  or  by  some  rule 
adjusted  by  reference  to  the  separate  parcels  of  the  work  performed,. 
in  which  it  has  been  uniformly  held — except  in  one  case,  where  the 
default  was  occasioned  by  the  death  of  the  party  employed — that 
the  whole  of  the  service  must  be  performed  in  order  to  warrant  a 
recovery  for  any  part.  (McMillan  v.  Vanderlip,  12  Johns.  165; 
Cunningham  v.  Morrell,  10  id.  203;  Jennings  v.  Camp,  13  id.  94; 
Reab  v.  Moor,  19  id.  337 ;  Lantry  v.  Parks,  8  Cow.  63 ;  Monell  v. 
Bums,  4  Denio  121  ;  Wolf  v.  Howes,  20  N.  Y.  197.)  These  cases 
proceed  upon  the  ground  that  the  contracts  were  entire  in  the 
sense  that  full  performance  of  the  services  contracted  for  was,  by 
the  agreement  of  the  parties  to  be  made  before  anything  became 
payable  by  the  employer.  On  this  assumption  the  principle  of  law 
upon  which  a  recovery  was  denied  was  perfectly  plain.  But  sup- 
pose a  contract  for  a  year,  the  employers  agreeing  to  pay  the 
servant  ten  dollars  at  the  end  of  each  month,  and  a  part  performance 
and  subsequent  breach  by  the  servant,  the  employer  being  in  arrears 
for  several  full  months.  In  such  a  case,  I  conceive  that  the  servant 
should  be  permitted  to  recover  for  the  wages  earned,  subject  to  a 
recoupment  of  the  master's  damages  for  the  time  covered  by  the 
breach.  I  am  ignorant  of  any  principle  upon  which  it  could  be  held 
that  he  could  not  recover  anything.  It  certainly  cannot  be  upon  the 
ground  of  the  non-performance  of  a  condition  precedent,  for  it  is 
absurd  to  say,  that  under  such  a  contract,  serving  the  last  month 
was  a  condition  to  the  payment  for  the  first.^  In  the  case  of  con- 
tracts for  personal  services,  the  death  of  the  servant,  we  have  seen, 
would  enable  his  representatives  to  recover  a  pro  rata  compensation ; 
but  in  other  cases,  as  in  agreements  for  the  purchase  of  articles  of 
property  to  be  delivered  at  different  times,  a  failure  to  deliver  the 
last  parcel,  though  it  should  result  from  an  unforseen  accident, 
and  though  the  part  not  delivered  should  bear  a  very  small  propor- 
tion to  the  value  of  these  already  delivered,  would,  upon  the  opposite 
doctrine,  preclude  a  recovery  for  any  part.  If  parties  will  be  so  in- 
cautious as  to  stipulate  for  a  full  performance  of  a  contract  of  this 
character,  as  a  condition  for  the  payment  of  anything,  the  law  will 

*  This  doctrine  was  applied  in  Walsh  v.  N.  Y.  &  Kentucky  Co.,  88  App. 
Div.  (N.  Y.)  477  (1903),  where  the  facts  were  that  plaintiff  was  employed 
for  a  year  at  "a  salary  of  $5,000  per  year"  to  be  paid  "in  monthly  install- 
ments of  $416.66;"  that  on  November  7  plaintiff  was  lawfully  discharged  for 
disobedience  of  orders  in  performing  his  services ;  that  his  wages  for  Oc- 
tober had  not  yet  been  paid.  It  was  held  that  he  could  recover  the  $416.66 
due  for  October. 


\ 


48  BENEFITS    CONFERRED    UNDER    CONTRACT. 

not  relieve  them ;  but  if  they  take  care  to  provide  for  payment  upon 
the  deUvery  of  each  article  or  each  parcel,  or,  in  the  case  of  services, 
for  periodical  payments,  they  must  be  permitted  to  recover  for  the 
part  which  by  the  terms  of  the  agreement  had  become  payable,  upon 
deducting  the  damages  of  the  other  party  in  respect  to  the  portion 
unperformed.     *     *     *     * 


CATLIN  V.  TOBIAS. 
26  N.  Y.  217.— 1863. 

Action  for  goods  sold  and  delivered. 

Emott,  J. — *  *  *  *  The  referee  states  in  his  report  that  on  the 
15th  day  of  March,  1854,  the  defendant,  who  was  a  manufacturer  of 
liniment,  made  a  contract  in  writing  with  D.  O.  Ketchum  &  Co., 
who  were  vendors  of  glassware,  by  which  they  agreed  to  deliver  to 
him  bottles  of  various  sizes  for  his  medicine,  at  prices  which  were 
specified  in  the  contract,  and  he  agreed  to  take  the  glassware. 
Either  party  failing  to  perform  was  to  forfeit  or  to  pay  $200  to  the 
other.  The  bottles  were  to  be  delivered  during  the  months  of  April, 
May  and  June  next  ensuing,  and  the  kinds  and  quantities  of  bottles 
to  be  delivered  during  each  month  are  specified  in  the  agreement. 
The  agreement  is  silent  as  to  the  time  and  manner  of  payment, 
although  it  was  proved  at  the  trial,  without  objection,  that  there  was 
to  be  a  credit  of  six  months.  It  was  also  proved  that  after  all  the 
deliveries  which  the  vendors  actually  made  in  April,  1854,  the 
defendant  gave  them  his  note  at  six  months  for  an  amount  which 
included  the  price  of  similar  articles  which  had  been  sold  and  de- 
livered to  him  before  this  agreement  was  made,  and  also  a  part  of 
the  price  of  the  articles  delivered  in  April  after  the  contract.  This 
note  was  dated  April  13,  1854,  and  seems  to  have  been  subse- 
quently paid,  but  the  referee's  report  is  silent  in  regard  to  it ;  nor  is 
there  evidence  to  show  that  there  was  any  distinct  understanding 
between  the  parties  as  to  its  precise  consideration.  On  the  nth  of 
April  the  referee  finds  that  D.  O.  Ketchum  &  Co.  delivered  to  the  de- 
fendant sixty-four  gross  of  two-ounce  bottles,  eighteen  gross  of 
ten-ounce  bottles,  and  sixty-two  gross  of  five-ounce  bottles.  The  con- 
tract calls  for  one  hundred  gross  of  two-ounce  bottles,  and  twelve 
gross  of  ten-ounce  bottles,  to  be  furnished  in  the  month  of  April,  but 
there  is  nothing  in  it  as  to  the  purchase  or  sale  at  any  time  of  any 
five-ounce  bottles.  The  referee  finds  that  all  the  bottles  thus  de- 
livered were  received  and  used  by  the  defendant.  After  this,  on  the 
14th  day  of  April,  1854,  the  firm  of  D.  O.  Ketchum  &  Co.  was  dis- 
solved, and  all  the  assets  of  the  firm,  including  the  contract  with  the 
defendant,  and  any  and  every  claim  against  him,  were  assigned  to 
D.  O.  Ketchum.  A  short  time  after  this  D.  O.  Ketchum  failed,  and 
on  the  loth  of  June,  1854,  executed  a  general  assignment  for  the 


BREACH    OF    CONTRACT.  149 

benefit  of  his  creditors  to  the  plaintiff.  No  more  bottles  were  de- 
livered to  the  defendant  after  the  nth  of  April,  and  the  residue  of 
the  agreement  was  not  fulfilled  by  the  vendors. 

The  plaintiff's  assignors  have,  therefore,  failed  to  perform  their 
contract,  and  assuming,  as  the  referee  has  done,  that  all  the  articles 
delivered  by  them  to  the  defendant,  of  the  description  specified  and 
called  for  by  the  agreement,  were  delivered  under  and  in  perform- 
ance of  it,  the  question  arises  whether,  upon  such  a  part  performance, 
payment  can  be  recovered  for  the  price  or  value  of  the  articles  thus 
delivered.  The  referee  held  that  the  defendant  was  liable  to  pay 
for  the  glass  delivered  after  the  making  of  the  agreement,  notwith- 
standing it  was  not  delivered  in  pursuance  of  its  terms.  He  did  not, 
however,  find  or  report  that  the  defendant  waived  the  performance  of 
the  contract,  but  only  that  he  accepted  and  used  the  articles  de- 
livered. He  also  decided  that  the  defendant's  claim  for  damages 
for  the  non-delivery  of  the  glass  could  not  be  set  up  under  the 
pleadings  and  proof  in  this  action  against  the  plaintiff.  To  these 
decisions  the  defendant  excepted. 

It  will  be  seen  that  sixty-tw^o  gross  of  five-ounce  bottles  were  de- 
livered by  D.  O.  Ketchum  &  Co.  to  the  defendant  on  the  nth  of 
April,  which  were  not  called  for  by  the  contract.  The  report  of  the 
referee  states  that  these  "were  not  at  all  within  the  contract,"  which 
may  probably  be  fairly  construed  to  mean  that  they  were  not  de- 
livered or  received  in  pursuance  of  the  contract,  or  as  part  of  the 
deliveries  under  it.  If  this  be  so,  and  this  finding  is  not  objected  to 
by  either  party,  there  can  be  no  reason  why  the  plaintiff  should  not 
recover  the  value  of  these  articles,  as  upon  a  separate  and  distinct 
sale  and  delivery  to  the  defendant.  If  there  was  such  a  distinct  sale 
as  the  referee's  finding  seems  to  imply,  the  vendor's  right  to  recover 
the  price  of  the  vendee  does  not  depend  upon  their  rights  or  liabil- 
ities under  the  contract  of  the  loth  of  March,  however  the  ultimate 
recovery  might  be  affected  or  reduced  by  any  counter-claim  of  the 
defendant  for  damages  in  consequence  of  a  breach  of  that  agree- 
ment. If  I  could  find  in  this  case  any  unequivocal  proof  of  the  price 
or  value  of  the  property  included  in  this  separate  sale,  I  should 
have  no  difficulty  in  sustaining  a  recovery  against  the  defendant  in 
this  action  to  that  extent.  But  the  referee  does  not  state  this  price 
or  value,  nor  is  there  any  evidence  of  it  except  in  a  bill  produced 
at  the  trial,  and  stated  to  have  been  rendered  to  the  defendant  by 
the  present  plaintiff  after  the  assignment  to  him. 

The  referee  held  that  the  plaintiff's  recovery  could  not  be  miti- 
gated or  reduced  by  the  loss  or  damage  sustained  by  the  defendant 
by  the  breach  of  the  contract.  Without  discussing  that  question 
I  will  proceed  to  consider  the  case  in  a  broader  aspect,  and  to 
examine  the  main  question,  whether  the  plaintiff  can  recover  for 
the  price  or  value  of  the  articles  actually  delivered  by  his  assignor. 

The  referee  decided  that  although  there  had  been  only  a  partial 
performance  of  the  contract,  yet  the  defendant  was  liable  to  pay  for 
the  articles  delivered  under  it  in  such  part  performance,  because  they 


150  BENEFITS    CONFERRED   UNDER    CONTRACT. 

were  accepted  and  used  by  him.  He  considered  that  the  deliveries 
stipulated  in  the  months  of  April,  May  and  June  were  to  be  treated 
as  separate  contracts.  Even  if  this  were  so,  the  vendors  did  not 
perform  their  contract  in  respect  to  the  deliveries  for  the  month 
of  April,  and  the  case,  after  all,  stands  upon  a  partial  performance 
only.  In  Deming  v.  Kemp,  4  Sand,  S.  C.  R.  147,  which  is  cited  by 
the  referee,  the  original  contract  was  void  by  the  Statute  of  Frauds, 
and  each  separate  delivery  was,  therefore,  regarded  as  a  separate 
sale  made  upon  an  independent  contract.  The  same  feature  exists 
in  the  case  of  Seymour  v.  Davis,  2  Sand.  S.  C.  R.  239,  decided  in 
the  same  court. 

In  the  present  case  there  was  a  valid  contract  between  D.  O. 
Ketchum  &  Co.  and  the  defendant,  for  the  sale  and  delivery  of. 
bottles  of  specified  sizes  during  three  months.  The  defendant,  no 
doubt,  made  this  contract  with  a  view  to  the  requirements  of  his 
business,  and  for  the  purpose  of  being  supplied  with  the  articles 
from  time  to  time  as  he  required  them.  The  vendors  failed  to  per- 
form their  part  of  this  agreement,  and  the  court  below  held  that  the 
defendant  was  nevertheless  bound  to  performance,  that  is,  payment 
on  his  part,  because  he  did  not  return  the  articles  which  had  been 
delivered  to  him.  So  far  as  we  have  any  evidence  in  the  case,  as 
to  the  time  and  mode  of  payments,  it  was  not  due  until  after  all  the 
deliveries  had  been  made.  The  contract  was  entire,  and  called  for 
an  entire  performance,  and  until  such  performance  was  made  or 
tendered  there  was  no  liability  on  the  part  of  the  defendant.  Even 
if  each  month's  delivery  is  regarded  as  a  separate  contract,  still  the 
same  principles  apply  and  must  control  the  rights  of  these  parties. 
Even  in  that  aspect  of  the  case,  as  I  have  already  said,  there  has 
been  a  breach  of  the  contract  by  the  vendor,  and  his  claim  for  com- 
pensation rests  upon  mere  partial  performance.  I  am  unable  to 
see  any  distinction  between  such  a  case  and  that  of  Champlin  v. 
Rowley,  in  the  Court  of  Errors,  18  Wend.  187.  The  idea  of  an 
equitable  right  of  recovery  in  such  cases,  which  was  discountenanced 
by  the  chancellor  in  his  opinion  there,  has  found  no  more  favor  in 
the  courts  of  this  state  subsequently.  In  Smith  v.  Brady,  17  N.  Y. 
173,  the  principles  which  control  all  this  class  of  cases  were  elab- 
orately considered  in  this  court,  and  it  would  be  a  distinct  departure 
from  the  doctrine  of  that  case  to  sustain  a  recovery  for  the  price  of 
the  articles  delivered  under  this  contract  upon  the  facts  before  us 
in  this  case.  The  defendant  was  not  bound  to  retain  the  articles 
delivered  to  him  under  the  contract  in  the  course  of  the  month  of 
April,  or  of  any  other  month  included  within  its  limits,  without 
using  or  disposing  of  them  until  the  contract,  or  even  the  month, 
had  expired,  to  ascertain  whether  the  vendors  would  perform  their 
agreement.  He  made  his  contract  to  obtain  the  articles  which  he 
was  to  buy  for  immediate  and  constant  use,  and  no  one  could  have 
demanded  or  expected  that  he  would  not  use  them  as  they  were  re- 
quired in  his  business.  P)nt  if  he  did  not  waive  the  performance 
of  the  contract  he  had  a  right  to  insist  upon  its  performance  as  an 


BREACH    OF   CONTRACT.  I51 

entirety,  and  when  the  vendors,  without  cause  or  excuse,  refused  to 
perform  it,  he  was  not  bound  to  return  what  he  had  received,  nor 
could  he  be  compelled  to  pay  for  a  part  performance.  Such  cer- 
tainly is  now  the  settled  doctrine  of  the  courts  of  this  state. 

The  case  of  Shields  v.  Pettee,  2  Sand.  S.  C.  262,  which  was  cited 
by  the  referee  in  his  opinion  and  on  the  argument,  has  no  applica- 
tion to  the  present  case.  That  was  a  sale  of  a  certain  amount  of  iron 
as  an  entirety,  all  deliverable  at  once.  After  the  delivery  had  com- 
menced the  vendees  found  the  article  not  to  be  such  as  they  had 
agreed  to  buy,  and  they  refused  to  receive  any  more.  They  did 
not,  however,  return  what  they  had  already  received,  but  claimed  to 
retain  this,  while  they  refused  the  residue  and  still  claimed  damages 
for  the  inferiority  in  quality  of  what  they  retained.  The  court 
held  that  the  vendees  must  either  afifirm  or  rescind  in  toto,  and  that 
they  could  not  retain  a  part  of  the  iron  sold  them  and  at  the  same 
time  refuse  the  residue,  and  claim  damages  for  its  non-delivery. 
The  difiference  is  as  plain  between  this  case  and  that  as  it  is  be- 
tween such  a  case  and  one  where  a  vendee  accepts  an  article  with 
his  eyes  open  and  thus  elects  to  consider  it  a  performance  of  the 
contract,  although  it  is  different  from  what  the  vendor  agreed  to 
make  it.  If,  in  the  case  of  the  sale  of  the  iron,  the  vendors,  after 
delivering  a  part,  had  unjustifiably  refused  to  deliver  the  residue, 
and  yet  claimed  to  recover  for  what  they  had  delivered,  or  if  in  the 
latter  case  supposed,  the  vendor  had  tendered  an  article  which  was 
not  according  to  his  contract,  and  sought  to  recover  its  price  al- 
though the  vendee  refused  to  receive  it,  the  cases  would  be  more 
analogous  to  the  present. 

As  I  see  no  way  of  retaining  the  judgment  for  the  articles  sold 
and  delivered  independently  of  the  contract,  it  must  be  reversed  and 
a  new  trial  orderd  in  the  court  below. 

Judgment  reversed,  and  new  trial  ordered. 


RICHARDS  ET  AL.  V.  SHAW. 
67  III.  222. — 1873. 

Mr.  Justice  Sheldon. — This  was  an  action  of  assumpsit,  to  re- 
cover for  391  bushels  of  corn  sold  and  delivered.  The  declaration 
contained  a  special  count  on  a  contract  for  the  sale  of  the  corn,  and 
also  the  common  counts.  The  plaintiff  below,  Shaw,  recovered  a 
verdict  and  judgment  for  $115. 

The  testimony  in  the  case  showed  a  contract  on  the  part  of  Shaw, 
made  in  March,  1867,  to  sell  to  Sandford  and  Seldon  Richards  500 
bushels  of  com  at  the  price  of  50  cents  per  bushel.  Shaw  delivered 
only  391.20  bushels  of  the  corn,  about  thirty  bushels  of  it  the  last  of 
April,  1867,  and  the  rest  in  June,  1867.    The  price  of  corn  on  the 


152  BENEFITS    CONFERRED    UNDER    CONTRACT, 

5th  of  May,  1867,  which  the  Richards  claim  to  be  the  time  of  de- 
livery, was  75  to  80  cents  per  bushel ;  and  in  June,  1S67,  at  the 
time  Shaw  delivered  all  but  the  thirty  bushels,  it  was  45  to  48  cents 
per  bushel.  There  seems  to  be  no  material  contradiction  in  the 
testimony,  except  upon  one  point,  the  time  of  delivery  under  the 
contract.  Shaw  testified  that  the  time  of  delivery  was  not  fixed 
by  the  contract,  although  he  admits  that  about  the  first  of  May 
was  understood  to  be  the  time  for  the  delivery  of  the  corn,  but 
that  he  would  not  make  a  positive  agreement  for  the  delivery  at 
that  time.  Sandford  and  Seldon  Richards  both  testified  positively 
that,  by  the  contract,  the  corn  was  to  be  delivered  by  the  5th  day 
of  May,  1867,  and  Orin  Richards  testified  that  it  was  to  be  de- 
livered the  first  of  May.  The  clear  weight  of  the  testimony  is,  that 
the  time  of  delivery  was  fixed  by  the  contract  to  be  by  the  5th  of 
May,  1867. 

The  appellants  make  two  points  for  reversal  of  the  judgment : 
First,  that  the  plaintiff  below  could  not  recover  without  showing 
the  completion  of  the  contract  under  which  the  com  was  delivered. 
Second,  that  the  verdict  is  against  the  evidence.  There  was  a  mani- 
fest failure  on  the  part  of  Shaw  to  complete  his  contract,  yet  we  are 
inclined  to  hold  that  he  was  entitled  to  his  action  as  upon  an  im- 
plied contract,  for  the  portion  of  the  corn  he  did  deliver. 

It  is  a  rule,  supported  by  a  very  respectable  weight  of  modern 
authority,  that,  if  the  vendee  of  a  specific  quantity  of  goods  sold 
under  an  entire  contract,  receive  a  part  thereof,  and  retain  it  after 
the  vendor  has  refused  to  deliver  the  residue,  this  is  a  severance  of 
the  entirety  of  the  contract,  and  the  vendee  becomes  liable  to  the 
vendor  for  the  price  of  such  part ;  but  he  may  reduce  the  vendor's 
claim  by  showing  that  he  has  sustained  damage  by  the  vendor's 
failure  to  fulfil  his  contract.  Oxendale  v.  Wetherell,  9  Barn.  & 
Cressw.  386;  Shipton  v.  Casson,  5  id.  378;  Booth  v.  Tyson,  15  Vt. 
515;  2  Story  Con.,  sec.  847;  2  Parsons  Con.  668,  and  cases  cited  in 
note;  Bowker  v.  Hoyt,  18  Pick.  555.  Although  this  rule  may  be  a 
relaxation  of  the  earlier  and  more  generally  received  doctrine,  that 
the  entire  performance,  on  the  part  of  the  vendor,  of  such  a  contract 
as  the  one  in  question,  is  a  condition  precedent  to  the  payment  of 
the  price,  and  the  maintenance  of  an  action  for  its  recovery,  the  rule 
seems  to  be  a  fair  and  just  one,  and  we  are  disposed  to  give  it  our 
acquiescence.  It  seems  heretofore  to  have  received  recognition  by 
this  court.    Evans  v.  Chi.  and  R.  I.  R.  Co.,  26  111.  189. 

Assuming  that  the  time  fixed  by  the  contract  for  the  delivery  of 
the  corn  was  by  the  5th  day  of  May,  the  verdict  was  manifestly 
against  the  evidence. 

The  damages  sustained  1)y  the  defendants  below  by  the  failure  to 
deliver  470  bushels  of  corn  within  the  time  specified  by  the  contract, 
when  corn  was  worth  75  to  80  cents  per  bushel,  would  amount  at 
least  to  some  $117.  Defendants  had,  besides,  an  undisputed  set-ofT 
of  $40.90.     These  two  items  deducted  from  the  contract  price  of 


BREACH    OF    CONTRACT,  I53 


the  corn  delivered  would  leave  only  aljout  $40  due  the  plaintiff  be- 
low, instead  of  $115,  as  found  by  the  jury. 

The  judgment  must,  therefore,  be  reversed  and  the  cause  re- 
manded. Judgment  reversed.^ 


ii.     Defendant  in  Default. 

DERBY  AND  OTHERS  V.  JOHNSON  and  others. 

21    Vt.    17. — 1848. 

Book  account.  Plaintiffs  contracted  to  perform  for  defendants 
the  stone  work,  masonry  and  blasting  on  three  miles  of  railroad  at 
certain  prices  by  the  cubic  yard.  After  plaintiffs  had  worked  one 
month,  defendants  directed  and  requested  plaintiffs  to  abandon 
further  execution  of  the  contract  and  they  did  so.  Plaintiffs  pre- 
sented an  account  for  labor  and  materials  in  the  prosecution  of  the 
work  performed.    Judgment  in  county  court  for  plaintiffs. 

Hall^  J. — *  *  *  *  Treating  the  plaintiffs  as  having  been 
prevented  from  executing  their  part  of  the  contract  by  the  act  of 
the  defendants,  we  think  the  plaintiffs  are  entitled  to  recover,  as 
upon  a  quantum  meruit,  the  value  of  the  services  they  had  per- 
formed under  it,  without  reference  to  the  rate  of  compensation 
specified  in  the  contract.  They  might  doubtless  have  claimed  the 
stipulated  compensation,  and  have  introduced  the  contract  as  evi- 

^In  Saunders  v.  Short,  58  U.  S.  App.  689;  86  Fed.  225  (1898),  the  court 
says :  "The  plaintiffs  sue  only  for  the  balance  due  for  the  number  of  cattle 
actually  delivered  to  and  received  by  the  defendant  at  the  prices  the  defend- 
ant is  alleged  to  have  agreed  to.  In  respect  to  the  effect  of  the  acceptance 
of  a  delivery  of  a  part  of  personal  property  contracted  for  under  an  entire 
contract  the  American  cases  are  conflicting.  In  some  of  the  states  it  has 
been  held  that  nothing  can  be  recovered  for  part  performance  of  an  entire 
contract  unless  full  performance  was  waived  or  prevented.  Champlin  v. 
Rowley,  18  Wend.  187;  Smith  v.  Brady,  17  N.  Y.  173;  Catlin  v.  Tobias,  26 
N.  Y.  217;  Jennings  v.  Lyons,  39  Wis.  553;  Mill  Co.  v.  Westervelt,  67  Mc. 
446.  In  Avery  v.  Willson,  81  N._  Y.  341,  however,  it  was  held  that,  if  the 
vendee  evinces  by  his  acts  a  waiver  of  a  complete  delivery,  by  the  receipt 
and  appropriation  to  his  own  use  of  a  portion  of  the  goods  contracted  for,  he 
thereby  becomes  liable  to  pay  for  what  was  actually  delivered.  The  modern 
American  rule  seems  to  be  that  a  party  who  has  failed  to  perform  in  full  his 
contract  for  the  sale  and  delivery  of  personal  property  may  recover  compen- 
sation for  the  part  actually  delivered  and  received  thereunder,  less  the  dam- 
ages occasioned  by  his  failure  to  make  the  complete  delivery.  Many  of  the 
cases  establishing  this  principle  will  be  found  cited,  in  note  19,  §  1032,  2  Benj. 
Sales.  *  *  *  ^  contract  for  the  sale  and  delivery  of  a  certain  number  of 
cattle,  unlike  one  for  the  building  and  completion  of  a  house  or  other  struc- 
ture, is  severable  in  its  nature,  and  there  is  no  just  reason  why,  if  the  vendee 
accepts  and  appropriates  to  his  own  use  a  portion  of  the  property  so  con- 
tracted for,  he  should  not  pay  the  stipulated  price  for  such  portion,  less  the 
amount  of  damages  sustained  by  him  by  reason  of  the  vendor's  failure  to 
make  complete  delivery." 


154  BENEFITS    CONFERRED    UNDER    CONTRACT. 

dence  of  the  defendants'  admission  of  the  value  of  the  services.  And 
they  might,  in  addition,  in  another  form  of  action,  have  recovered 
their  damages  for  being  prevented  from  completing  the  whole  work. 
In  making  these  claims  the  plaintiffs  would  be  acting  upon  the 
contract  as  still  subsisting  and  binding ;  and  they  might  well  do  so ; 
for  it  doubtless  continued  binding  on  the  defendants.  But  we  think 
the  plaintiffs,  upon  the  facts  stated  in  the  report  of  the  auditor,  were 
at  liberty  to  consider  the  contract  as  having  been  rescinded  from  the 
beginning,  and  to  claim  for  the  services  they  had  performed,  with- 
out reference  to  its  terms. 

The  defendants,  by  their  voluntary  act,  put  a  stop  to  the  execution 
of  the  w^ork,  when  but  a  fractional  part  of  that  which  had  been  con- 
tracted for  had  been  done,  and  while  a  large  portion  of  that  which 
had  been  entered  upon  was  in  such  an  unfinished  condition,  as  to 
be  incapable  of  being  measured  and  its  price  ascertained  by  the  rate 
specified  in  the  contract.  Under  these  circumstances,  we  think  the 
defendants  have  no  right  to  say,  that  the  contract,  which  they  have 
thus  repudiated,  shall  still  subsist  for  the  purpose  of  defeating  a 
recovery  by  the  plaintiffs  of  the  actual  amount  of  labor  and  materi- 
als they  have  expended. 

In  Tyson  v.  Doe,  15  Vt.  571,  where  the  defendant,  after  the  part 
performance  of  a  contract  for  delivering  certain  articles  of  iron 
castings,  prevented  the  plaintiff  from  farther  performing  it,  the 
contract  was  held  to  be  so  far  rescinded  by  the  defendant,  as  to  al- 
low the  plaintiff  to  sustain  an  action  on  book  for  the  articles  de- 
livered under  it,  although  the  time  of  credit  for  the  articles,  by  the 
terms  of  the  contract,  had  not  expired.  The  court,  in  that  case, 
say,  "that  to  allow  the  defendant  to  insist  on  the  stipulation  in  re- 
gard to  the  time  of  payment,  while  he  repudiates  the  others,  would 
be  to  enforce  a  different  contract  from  that  which  the  parties  en- 
tered into."  The  claim  now  made  in  behalf  of  the  defendants,  that 
the  rate  of  compensation  specified  in  the  contract  should  be  the  only 
rule  of  recovery,  would,  if  sustained,  impose  upon  the  plaintiffs  a 
contract  which  they  never  made.  They  did,  indeed,  agree  to  do  all 
the  work  of  a  certain  description  on  three  miles  of  road,  at  a  cer- 
tain rate  of  compensation  per  cubic  yard ;  but  they  did  not  agree  to 
make  all  their  preparations  and  do  but  a  sixteenth  part  of  the  work 
at  that  rate ;  and  it  is  not  to  be  presumed  they  would  have  made  any 
such  agreement.  We  are  not  therefore  disposed  to  enforce  such  an 
agreement  against  them. 

The  case  of  Koon  v.  Greenman,  7  Wend.  121,  is  much  relied  upon 
by  the  counsel  for  the  defendants.  In  that  case  the  plaintiff  had 
contracted  to  do  certain  mason  work  at  stipulated  prices,  the  de- 
fendant finding  the  materials.  After  a  part  of  the  work  had  been 
done,  the  defendant  neglecting  to  furnish  materials  for  the  residue, 
the  plaintiff  quit  work  and  brought  his  action  of  general  assumpsit. 
The  court  held  he  was  not  entitled  to  recover  the  value  of  the  work, 
but  only  according  to  the  rate  specified.  The  justice  of  the  decision 
is  not  very  apparent ;  and  it  does  not  appear  to  be  sustained  by  the 


BREACH    OF    CONTRACT.  155 

authorities  cited  in  the  opinion, — they  being  all  cases,  either  of  devia- 
tions from  the  contract  in  the  manner  of  the  work,  or  delays  of 
performance  in  point  of  time.  But  that  case,  if  it  be  sound  law, 
is  distinguishable  from  this  in  at  least  two  important  particulars. 
In  that  case  the  plaintiff  was  prevented  from  completing  his  con- 
tract by  the  mere  negligence  of  the  defendant ;  in  this,  by  his  volun- 
tary and  positive  command.  In  that  case  there  does  not  appear  to 
have  been  any  difficulty  in  ascertaining  the  amount  to  which  the 
plaintifif  would  be  entitled,  according  to  the  rates  specified  in  the 
contract ;  whereas  in  this,  it  is  altogether  impracticable  to  ascertain 
what  sum  would  be  due  the  plaintiffs,  at  the  stipulated  prices,  for 
the  reason  that  when  the  work  was  stopped  by  the  defendants,  a 
large  portion  of  it  was  in  such  an  unfinished  state  as  to  be  incapable 
of  measurement.  That  case  is  therefore  no  authority  against  the 
views  we  have  already  taken. 

The  judgment  of  the  county  court  is  therefore  affirmed. 


HEMMINGER  v.  WESTERN  ASSURANCE  CO. 
95  Mich.  355.— 1893. 

McGrath,  J. — Defendant  was  the  owner  of  a  steam  barge  and  a 
schooner,  both  sunken  in  Lake  Huron,  the  one  off  Sand  Beach,  and 
the  other  off  White  Rock.  On  September  2,  1889,  it  entered  into 
a  written  contract  with  Thomas  and  Medar  Isabell,  by  the  terms 
of  which  the  Isabells  were  to  recover  from  these  vessels  everything 
worth  saving,  and  deliver  the  same  upon  the  dock  at  Port  Huron, 
and  in  consideration  the  Isabells  were  to  receive  one-half  of  the  net 
amount  realized  from  the  sale  of  the  machinery,  outfit,  and  the 
other  things  so  saved.  No  time  within  which  this  work  was  to  be 
done  was  named  in  the  agreement.  The  Isabells  procured  the  neces- 
sary apparatus,  commenced  the  work,  and  prosecuted  it  with  vary- 
ing success  during  that  fall.  They  encountered  severe  weather,  and 
were  compelled  several  times  to  abandon  the  wreck  and  seek  shelter. 
They  continued  their  work  as  the  weather  permitted,  until  about  No- 
vember I,  but  were  then  compelled  to  abandon  it  for  that  season, 
intending  to  resume  it  in  the  spring.  They  recovered,  and  delivered, 
as  agreed : 

"Two  spars  and  the  rigging  of  these  spars,  five  sails  and  a  lot  of 
running-gear,  one  tow  line,  two  Atlantic  pumps,  one  windlass,  one 
wheel,  one  capstan,  one  lot  of  eye-bolts  and  ring-bolts,  one  set  of 
davits,  one  set  of  cat-heads,  one  anchor  and  two  shots  of  chain,  one 
compass,  one  log,  one  gaff,  one  air-pump,  one  stay-sail  boom,  one 
heater,  one  pony-engine,  one  force-pump,  one  automatic-pump,  one 
steam-chest  head,  one  cylinder  head,  a  lot  of  broken  castings,  a  lot 
of  steam  pipe,  half  a  ton  of  gaspipe,  one  cut-off,  one  exhaust,  one 


156  BENEFITS    CONFERRED    UNDER    CONTRACT, 

iron  bulk-head,  one  fire-room  floor,  a  lot  of  fire-grates,  and  one 
boiler." 

On  the  1 2th  day  of  December,  1889,  the  defendant  sold  all  the 
articles  recovered  except  the  boiler,  and  gave  a  bill  of  sale  of  all  the 
wreckage  of  both  vessels  remaining  therein,  to  one  Thompson.  The 
Isabells  assigned  to  plaintiff. 

The  declaration  counts  upon  a  breach  of  the  contract,  and  contains 
counts  for  labor  expended  and  expenses  incurred  in  and  about  the 
prosecution  of  the  work.  At  the  close  of  the  proofs  plaintiff  elected 
to  recover  upon  the  quantum  meruit,  on  the  theory  that  defendant 
"had  violated  the  contract,  ^nd  prevented  its  completion," 

The  general  rule  is  well  settled  that  a  party  to  a  contract  where 
labor  is  to  be  performed,  upon  the  breach  of  that  contract  by  the 
other  party,  has  two  remedies  open  to  him.  He  may  sue  upon  the 
contract,  and  recover  damages  for  its  breach,  or  he  may  ignore  the 
contract,  and  sue  for  services  and  labor  expended,  and  expenses 
incurred,  from  which  he  has  derived  no  benefit.  Kearney  v.  Doyle, 
22  Mich.  294 ;  Mitchell  v.  Scott,  41  Id.  108 ;  Boyce  v.  Martin,  46  Id. 
240 ;  Shulters  v.  Searls,  48  Id.  550 ;  Bush  v.  Brooks,  70  Id.  461 ; 
Bromley  v.  Goff,  75  Id.  218;  Moore  v.  Nail  Co.,  76  Id.  606.  In  case 
he  pursues  the  latter  remedy,  the  measure  of  damages  as  to  services 
is  not  necessarily  the  contract  price,  even  though  the  value  of  the 
services  can  be  measured  or  apportioned  by  the  contract  rate ;  but 
he  may  recover  what  his  services  are  reasonably  worth,  although  in 
excess  of  the  rate  fixed  by  the  contract.  Hosmer  v.  Wilson,  7  Mich. 
294;  Kearney  v.  Doyle,  supra;  Shulters  v.  Searls,  supra.  The  rule 
is  otherwise,  however,  where  the  plaintiff  is  the  author  of  the  breach. 
The  basis  of  a  recovery  by  one  who  is  in  default  is  an  implied  agree- 
ment arising  from  the  reception  of  something  of  benefit  or  value ; 
but,  where  the  party  suing  is  not  responsible  for  the  breach,  neither 
the  right  nor  the  amount  of  the  recovery  depends  upon  the  measure 
of  benefit  received  by  the  party  guilty  of  the  breach. 

The  rule  laid  down  by  Christiancy,  J.,  in  Hosmer  v.  Wilson, 
supra,  is  that : 

"The  plaintiff  [defendant]  having  appropriated  and  received  the 
benefit  of  the  labor  (or,  zvhat  is  equivalent,  having  induced  the  plain- 
tiff to  expend  his  labor  for  him,  and,  if  properly  performed  accord- 
ing to  his  desire,  the  defendant  being  estopped  to  deny  the  benefit),^ 
a  duty  is  imposed  upon  the  defendant  to  pay  for  the  labor  thus  per- 
formed." 

This  disposes  of  the  principal  contention  in  the  case.     *     *     *     * 

*  Italicised  by  the  present  editor. 


BREACH    OF    CONTRACT.  1^7 


Ross,  J.,  IN  CURTIS  V.  SMITH  et  al. 

48  Vt.   116,  120.— 1875. 

The  plaintiff  had  contracted  to  put  in  certain  wing-  walls  around 
the  bakery  of  the  defendants,  at  a  specified  price  per  yard.  Before 
the  time  arrived  for  the  planitiff  to  commence  putting-  in  the  wing 
walls,  the  defendants  notified  him  not  to  proceed  under  the  contract, 
and  thereby  terminated  it.  The  plaintiff'  gave  evidence  which  satis- 
fied the  jury  that  before  he  received  the  notice  terminating  the  con- 
tract, he  had  done  work  in  quarrying  stone  to  be  used  in  building- 
the  wing  walls.  The  stone  were  not  quarried  on  the  land  of  the  de- 
fendants, and  they  received  no  benefit  therefrom.  The  court  al- 
lowed the  plaintiff  to  recover  for  this  labor  under  the  common  count 
for  labor  done  and  performed.  In  this  we  think  there  was  error. 
The  defendants  did  not  contract  with  the  plaintiff  for  this  labor, 
but  for  the  wing  walls  completed.  The  plaintiff,  in  quarrying  stone 
from,  his  own  quarry,  was  not  at  work  for  defendants,  but  was  at 
work  for  himself,  getting  out  material  that  he  might  or  might  not 
use  in  the  erection  of  the  wing  walls.  The  stone  when  quarried  be- 
longed to  the  plaintiff,  and  he  could  put  them  to  any  use  he  saw  fit. 
The  plaintiff  had  performed  no  labor  for  the  defendants,  or  that  had 
enured  to  their  benefit  under  the  contract.  At  most,  he  had  only 
performed  labor  with  the  expectation  that  he  could  make  it  avail- 
able in  enabling  him  to  perform  his  contract  with  the  defendants. 
The  gravamen  of  his  complaint  as  developed  in  the  evidence  is,  that 
he  has  not  been  allowed  to  realize  this  expectation  by  reason  of  the 
act  of  the  defendants  in  wrongfully  terminating-  the  contract.  If  he 
would  recover  for  this,  he  should  declare  upon  the  contract  specially, 
and  for  the  breach  thereof  of  which  he  now  complains.^ 


WELLSTON  COAL  CO.  v.  FRANKLIN  PAPER  CO. 

57  Ohio   St.   182. — 1897. 

MiNSHALL,  J. — The  action  below  was  brought  by  the  Wellston 
Coal  Company  to  recover  of  the  Franklin  Paper  Company  $333,  the 
difference  between  the  contract  price  for  certain  coal  delivered  by 
the  plaintiff  under  a  contract  claimed  to  have  been  wrongfully  broken 
by  the  defendant,  and  the  market  price  at  the  time  of  the  deliveries, 
with  interest.    The  action  is  not  on  the  contract,  but  on  what,  at 

*  Accord,  Hosmer  v.  Wilson,  7  Mich.  294  (1859),  where  plaintiff  contracted 
to  build  an  engine  to  order  for  defendant  and  the  latter  countermanded  the 
order  after  part  of  the  work  had  been  done  by  plaintiff  and  upon  plaintiff's 
material. 


J 


158  BENEFITS    CONFERRED    UNDER    CONTRACT. 

common  law,  would  be  termed  a  g-eneral  assumpsit  on  quantum  rale- 
bant.  The  facts,  about  which  there  is  no  dispute,  are  correctly  stated 
in  the  brief  of  the  plaintiff.  On  August  7,  1890,  plaintiff  and  defend- 
ant made  a  written  contract,  by  which  defendant,  for  the  term  of  one 
year,  agreed  to  take  its  entire  supply  of  coal  from  plaintiff  at  the  rate 
of  $1.90  per  ton  of  2,000  pounds,  on  the  cars  at  Franklin,  Ohio, 
which,  after  deducting  freight,  would  net  the  plaintiff  $1  per  ton. 
The  demand  for  such  coal  was  greater  during  the  late  fall  and  winter 
months  of  each  year,  when  plaintiff's  business  would  be  active,  and 
less  during  the  spring  and  summer  months,  at  which  times  its  busi- 
ness would  be  dull.  The  sum  of  $i  per  ton  for  the  coal  was  the 
market  price,  outside  of  freight  charges,  for  coal  of  the  kind  men- 
tioned in  the  contract,  during  the  summer  of  1890,  and  at  the  time 
the  contract  was  made.  Plaintiff  and  defendant  were  familiar  with 
the  ups  and  downs  of  the  coal  trade,  and  knew  that  the  market 
price  of  such  coal  would  be  higher  during  the  fall  and  winter 
months;  and  they  both  understood  that  defendant  would  require, 
for  its  manufacturing  operations  during  the  entire  period  covered 
by  the  contract,  a  large  amount  of  such  coal,  which,  taken  by  de- 
fendant during  all  the  year  covered  by  the  contract,  would  give 
plaintiff  an  assured  sale  for  that  amount  of  coal  during  the  dull  sea- 
son. Such  contracts  for  the  year's  supply  of  coal  were  usually  made 
by  manufacturers  with  coal  shippers  during  the  summer,  and  were 
advantageous  to  both  parties. 

These  facts  were  known  to  both  plaintiff  and  defendant,  who 
contracted  with  reference  to  them ;  and  plaintiff  would  not  have 
made  the  contract  whereby  it  agreed  to  supply  coal  during  the  fall 
and  winter  months  at  the  contract  price,  which  would  be  less  than 
the  market  prices,  except  for  the  fact  that  it  would  supply  the 
defendant  coal  at  the  same  price  for  the  balance  of  the  year,  when 
the  price  would  be  about  the  same  as  the  contract  price,  and,  the 
demand  then  being  small,  it  would  not  otherwise  be  able  to  sell  the 
coal.  During  the  month  of  September,  1890,  the  market  price  of 
this  coal,  outside  of  freight  charges,  was  $1.05  per  ton;  and  from 
October  i,  1890,  to  February  i,  1891,  such  market  price  was  $1.15 
per  ton.  After  February,  during  the  rest  of  the  year  covered  by  the 
contract,  the  market  price  was  the  same  as  the  contract  price.  Dur- 
ing the  period  of  time  from  August  i,  1890,  to  May  13,  1891,  when 
the  contract  was  broken  by  the  defendant,  plaintiff  furnished  de- 
fendant, during  September  and  October,  1890,  in  all,  2,5623/2  tons 
of  coal,  for  which  it  was  paid  the  contract  price ;  while,  if  the  same 
coal  had  been  sold  at  the  market  prices  when  delivered,  plaintiff 
would  have  received  $333  more  for  it.  About  May  13,  1891,  de- 
fendant wrongfully  broke  the  contract,  and  refused  to  take  any 
more  coal  from  plaintiff.  The  contract  did  not  bind  the  defendant 
to  take  any  specified  quantity  of  coal  per  month,  but  the  average 
number  of  tons  per  month  taken  before  the  contract  was  broken, 
was  43434  tons ;  and,  if  it  had  continued  to  take  coal  under  the  con- 
tract at  the  same  average  number  of  tons  for  the  balance  of  May 


BREACH    OF    CONTRACT.  159 

and  the  months  June  and  July,  the  plaintiff  would  have  made  a  total 
profit  for  that  time,  under  the  contract,  of  $304.22. 

The  question  is  as  to  the  measure  of  damages  to  which  the  plain- 
tiff is  entitled  in  a  case  like  this.  It,  as  before  stated,  is  not  on  the 
contract,  but  for  the  value  of  the  coal  delivered  at  the  market  price, 
before  the  contract  was  wrongly  terminated  by  the  defendant,  less 
what  had  been  paid  therefor ;  i.  e.  the  contract  price.  The  plaintiff 
requested  the  court  to  charge  the  jury  that  it  was  entitled  to  re- 
cover, for  the  coal  delivered  prior  to  the  repudiation  of  the  contract 
by  the  defendant,  its  market  value  when  the  deliveries  were  made, 
and  is  not  limited  to  the  price  specified  in  the  contract.  This  the 
court  refused  to  do,  and  directed  the  jury  to  find  a  verdict  for  the 
plaintiff  for  nominal  damages  only.  The  general  rule  is  that,  when 
full  performance  of  a  contract  has  been  prevented  by  the  wrongful 
act  of  the  defendant,  the  plaintiff  has  the  right  either  to  sue  for 
damages,  or  he  may  disregard  the  contract,  and  sue  as  upon  a 
quantum  meruit  for  what  he  has  performed.  The  plaintiff  has  pur- 
sued the  latter  course ;  and  it  seems  well  settled,  both  on  reason 
and  authority,  that  he  had  the  right  to  do  so.  2  Sedg.  on  Dam. 
(8th  Ed.)  654;  ChamberHn  v.  Scott,  33  Vt.  80;  McCullough  v. 
Baker,  47  Mo.  401 ;  Kearnev  v.  Doyle,  22  Mich,  294 ;  Buffkin  v. 
Baird,  73  N.  C.  283 ;  U.  S.  v.  Behan,  no  U.  S.  338,  4  Sup.  Ct,  81  ; 
Merrill  v.  Railroad  Co.,  16  Wend.  586;  Clark  v.  Mayor,  etc.,  of 
New  York,  4  N.  Y.  338. 

But  it  is  claimed,  on  the  authority  of  Doolittle  v.  McCullough,  12 
Ohio  St.  360,  that  the  contract  price  must  still  be  the  measure  of  the 
plaintift"'s  recovery.  There  are  many  expressions  in  the  opinion  in 
that  case  that  seem  to  support  this  view,  and  much  of  the  reasoning 
is  to  the  same  effect.  But  all  that  is  there  said  must  be  taken  as 
said  with  reference  to  the  facts  of  that  case.  The  rule  there  stated 
may  be  regarded  as  a  proper  one  in  a  case  where,  as  in  that  case,  it 
appears  from  the  claim  of  the  plaintiff  that  the  breach  of  the  con- 
tract by  the  defendant  worked  no  loss,  but  a  benefit,  to  him,  on  the 
ground,  as  appears,  that,  had  he  been  required  to  complete  the 
work,  he  would  have  suffered  a  much  greater  loss ;  for,  if  the  least 
expensive  part  of  the  work  could  not  have  been  done  without  loss, 
it  follows  that  the  doing  of  the  remaining  part,  under  the  contract, 
would  have  resulted  in  a  still  greater  loss.  The  action  upon  a 
quantum  meruit  is  of  equitable  origin,  and  is  still  governed  by  con- 
siderations of  natural  justice.  Hence,  when  one  has  perfofmed  labor 
or  furnished  material  under  a  contract  that  is  wrongfully  termi- 
nated by  the  other  party  before  completion,  the  question  arises 
whether  the  party  not  in  fault  should  be  confined  to  the  contract 
for  what  he  did,  or  to  a  quanfiini  meruit ;  and  this  must  depend  upon 
whether  the  act  of  the  other  party  in  terminating  the  contract  works  a 
loss  or  not  to  him,  regard  being  had  to  the  contract.  If  it  works  no 
loss,  but  is  in  fact  a  benefit,  as  in  the  case  of  Doolittle  v.  McCul- 
lough, there  are  no  considerations  of  justice  requiring  that  he  should 
be  compensated  in  a  greater  sum  for  what  he  did  than  is  stipulated 


l60  BENEFITS    CONFERRED    UNDER    CONTRACT. 

in  the  contract.  These  considerations  exercised  a  controlHng-  in- 
fluence in  the  case  just  referred  to.  The  plaintiff  had  a  contract 
with  the  defendant  for  the  making  of  certain  excavations  in  the 
construction  of  a  raihoad.  He  was  to  receive  for  the  entire  work 
II  cents  per  cubic  yard.  He  had  performed  the  least  expensive 
part  of  the  work  when  the  contract  was  wrong-fully  terminated  by 
the  defendant ;  and  on  this  part,  by  his  own  showing,  he  had  suf- 
fered a  loss.  The  proof  showed  that  the  performance  of  the  re- 
mainder, being  hard-pan,  would  have  cost  him  a  great  deal  more. 
It  was  then  evident,  as  the  court  observed,  that  he  had  sustained 
no  loss,  but  a  benefit,  from  the  termination  of  the  contract  by  the 
defendant. 

But  in  the  case  before  us  the  facts  are  very  different.  They  are 
in  fact  just  the  reverse.  The  contract  was  for  the  delivery  of  coal 
at  a  price  generally  received  during  the  dullest  season  of  the  whole 
year.  The  defendant  received  the  coal  during  the  season  when  the 
market  was  above  the  contract  price.  He  had  the  benefit  of  the 
difference  between  the  market  and  the  contract  price ;  but  when  the 
dull  season  arrived,  and  the  advantages  of  the  contract  would  ac- 
crue to  the  plaintiff,  the  defendant  repudiated  it.  The  difference 
between  the  two  cases  is  thus  apparent.  In  the  case  before  us, 
justice  and  fair  dealing  require  that  the  defendant,  having  repudi- 
ated the  contract,  should  pay  the  market  price  for  the  coal  at  the 
time  it  was  delivered.  In  the  former  case,  as  the  repudiation  of  the 
contract  by  the  defendant  did  not  enrich  him  to  the  loss  of  the  plain- 
tiff, there  were  no  considerations  of  justice  on  which  the  plaintiff 
could  claim  more  than  the  contract  price  for  what  he  had  done  under 
the  contract.  The  object  in  allowing  a  recovery  of  this  kind  is  not 
to  better  the  condition  of  the  plaintiff  under  the  contract,  were  it 
performed,  but  to  save  him  from  a  loss  resulting  from  its  wrongful 
termination  by  the  defendant,  or,  in  more  general  words,  to  prevent 
the  defendant  from  enriching  himself  at  the  expense  of  the  plain- 
tiff by  his  own  wrongful  act.  The  real  test  in  all  cases  of  a  plain- 
tiff's right  to  recover  as  upon  a  quantum  meruit  for  part  perform- 
ance of  a  contract,  wrongfully  terminated  by  the  defendant,  depends 
upon  the  consideration  whether  the  defendant  is  thereby  enriched 
at  the  loss  and  expense  of  the  plaintiff.  If  so,  then  the  law  adds 
a  legal  to  the  moral  obligation,  and  enforces  it.  Keener,  Quasi- 
Cont.  19,  and  chapter  5,  passim.  And,  while  the  action  is  not  on  the 
contract  itself,  yet  it  is  so  far  kept  in  view  as  to  preclude  a  recovery 
by  the  plaintiff  where  he  would  necessarily  have  lost  more  by  per- 
forming the  contract,  for  the  consideration  agreed  upon,  than  he  did 
by  being  prevented  from  doing  so.  In  this  view,  the  case  of  Doo- 
little  v.  McCullough  was  rightly  decided,  and,  when  limited  to  its 
facts,  may  well  stand  as  authority  in  all  similar  cases.  Judgment 
of  the  circuit  court  and  that  of  the  common  pleas  reversed,  and 
cause  remanded  for  a  new  trial. 


BREACH    OF    CONTRACT.  l6l 

MISSOURI  ELECTRIC  LIGHT  &  POWER  CO.,  def't  in  error, 
V.  CARMODY,  pi/ff  in  error. 

72  Mo.  Arp.  534. — 1897. 

Bland,  P.  J. — The  defendant  in  error  sued  the  plaintiff  in  error 
in  the  circuit  court,  city  of  St.  Louis,  upon  the  following-  contract : 

"This  agreement,  made  and  entered  into  this  first  day  of  Novem- 
ber, 1893,  by  and  between  P.  J.  Carmody,  of  St.  Louis,  Missouri, 
party  of  the  first  part,  and  the  Missouri  Electric  Light  and  Power 
Company,  a  corporation  organized  under  the  laws  of  the  state  of 
Missouri,  party  of  the  second  part,  witnesseth ;     *     *     *     * 

"The  party  of  the  first  part  and  the  party  of  the  second  part,  in 
consideration  of  the  sum  of  one  dollar  by  each  to  the  other  in  hand 
paid,  the  receipt  of  which  is  hereby  acknowledged,  have  agreed  as 
follows : 

"  'First.  The  party  of  the  second  part  shall  furnish  to  the  party 
of  the  first  part,  when  called  upon,  the  necessary  current  to  illumi- 
nate approximately  twenty-nine  sixteen  candle  power  incandescent 
electric  lamps,  on  the  premises  hereinbefore  specified,  and  the  party 
of  the  second  part  shall  supply  to  the  party  of  the  first  part  all  the 
necessary  plain  lamps  to  be  used  in  the  buildings  for  renewals,  upon 
the  return  to  the  party  of  the  second  part  of  the  burnt  out  lamps  un- 
broken ;  the  party  of  the  first  part  agreeing  to  pay  to  the  party  of 
the  second  part  for  such  current  at  the  rate  of  one  cent  for  each 
unit,  such  unit  being  the  energy  required  to  maintain  one  lamp  of 
sixteen  candle  power  for  one  hour,  measurement  to  be  ascertained 
by  meter  furnished  by  the  party  of  the  second  part,  and  payment  for 
such  current  to  be  made  at  the  office  of  the  party  of  the  second  part 
by  the  tenth  of  the  month  following  the  service. 

"  'Second.  The  party  of  the  first  part  agrees  to  use  electric  cur- 
rent exclusively  for  lighting  the  premises  herein  specified  for  a 
period  of  five  years  from  date  of  this  instrument ;  in  consideration  of 
which  the  party  of  the  first  part  shall  receive  a  discount  of  twenty 
per  cent,  from  the  rate  hereinbefore  specified,  the  same  to  be  allowed 
from  the  monthlv  accounts  rendered  by  the  party  of  the  second 
part.     *     *     *     *'" 

The  petition  counts  upon  the  breach  of  this  contract.  First.  That 
the  defendant  in  error  furnished  electrical  current  to  the  plaintiff 
in  error  from  November  i,  1893,  to  April  21,  1896,  at  which  last 
named  date  the  plaintiff  in  error  refused  to  further  use  the  electri- 
cal current  furnished  by  defendant  in  error;  that  during  the  time 
of  this  service  the  defendant  in  error,  in  consideration  that  plain- 
tiff would  continue  to  use  electricity  exclusively  in  its  premises  for 
the  full  contract  period  of  five  years,  allowed  a  discount  to  plaintiff 
in  error  of  twenty  per  cent,  upon  the  successive  monthly  bills  ren- 
dered plaintiff  in  error  and  paid  by  him,  the  aggregate  of  such  dis- 
counts being  $245.19,  for  which  judgment  was  prayed.  *  *  *  * 
Woodruff's  Cases — 11 


1 


l62  BENEFITS    CONFERRED    UNDER    CONTRACT. 

The  answer  was  a  general  denial.  The  case  was  sent  to  a  referee, 
who  tried  all  the  issues,  reporting  in  favor  of  defendant  in  error 
for  the  several  sums  sued  for.  The  plaintiff  in  error  filed  excep- 
tions to  the  report  of  the  referee.  These  were  ruled  against  him ;  he 
filed  his  bill  of  exceptions,  and  sued  out  a  writ  of  error  from  this 
court. 

The  points  relied  upon  by  the  plaintiff  in  error  for  a  reversal  of 
the  judgment  apply  to  the  competency  of  the  proofs  offered  of  the 
quantity  of  electricity  furnished  (this  goes  to  the  whole  case),  and 
to  the  recovery  on  the  first  count  of  the  petition.  His  contention  as 
to  this  count  is  that  the  discount  of  twenty  per  cent,  on  monthly  bills 
settled  and  paid  prior  to  any  breach  of  the  contract  is  not  recover- 
able under  the  terms  of  the  contract.  We  will  first  consider  the 
second  point.  By  the  second  paragraph  of  the  contract,  "the  party 
of  the  first  part  agrees  to  use  electric  current  exclusively  for  light- 
ing the  premises  specified  for  a  period  of  five  years  from  date  of 
the  instrument,  in  consideration  of  which  he  was  to  receive  a  dis- 
count of  twenty  per  cent,  from  the  specified  rate,  to  be  allowed  from 
the  monthly  accounts  rendered  by  the  party  of  the  second  part." 
It  is  conceded  that  Carmody,  after  April  21,  1896,  refused  to  further 
use  the  electric  current  furnished  by  the  defendant  in  error,  and 
from  that  date  obtained  light  from  other  sources ;  in  other  words, 
he  broke  his  contract  to  use  electric  current  for  lighting  his  prem- 
ises for  five  years ;  and  the  consideration  upon  which  he  had  received 
the  twenty  per  cent,  discount  on  monthly  bills,  under  the  terms  of 
his  contract,  failed  by  reason  of  this  breach  made  by  him.  The  price 
which  he  agreed  to  pay  was  one  cent  for  each  unit  of  electric  power, 
but  in  consideration  that  he  would  continue  to  use  this  electric  light 
for  the  period  of  five  years,  the  defendant  in  error  agreed  to  give 
him  a  discount  of  twenty  per  cent,  on  this  agreed  price ;  he  accepted 
this  discount,  and  afterward,  of  his  own  volition  and  without  just 
cause,  set  aside  and  abrogated  the  only  consideration  upon  which  he 
had  received  it.  It  is  true,  as  contended  by  plaintiff  in  error,  that 
the  monthly  bills  were  settled  on  an  account  stated,  and  that  the 
payments  were  payments  in  full ;  but  the  parties  met  and  made 
these  monthly  settlements  with  the  contract  in  full  force  and  before 
them,  and  they  were  made  in  strict  accord  with  the  terms  of  the 
contract  and  in  anticipation  that  plaintiff  in  error  would  earn  these 
discounts  by  keeping  his  contract  to  the  end.  When  he  broke  the 
contract,  the  full  contract  price  of  the  electric  power  furnished  him 
immediately  became  due,  because  of  the  fact  that  he  had  repudiated 
and  set  at  naught  the  consideration  upon  which  he  had  been  allowed 
the  discount ;  and  no  reason  can  be  assigned  why  he  should  not  be 
held  to  refund  the  values  he  had  thus  received,  the  consideration 
for  which  had  failed  on  account  of  his  wrongful  act.     *     *     *     * 

The  judgment  is  affirmed. 

All  concur. 


BREACTI    OF    CONTRACT.  I63 

PORTER  V.  DUNN,  Executor. 
61  Hun  (N.  Y.)  310.— 1891. 

Daniels,  J. — The  plaintiff  made  a  claim  against  the  estate  of  the 
testator  for  services  })crformed  by  his  wife,  between  the  20th  of 
December,  1877,  and  the  5th  of  November,  1888,  in  caring  for  and 
attending  to  him  as  a  consumptive  invalid,  and  for  expenses  paid 
on  his  account,  and  also  for  cream  furnished  to  him,  between  the 
4th  of  July,  1886,  to  the  same  time  in  1888.  By  the  consent  of  the 
parties  and  the  approval  of  the  surrogate,  the  case  was  referred  to 
a  referee  for  trial  and  determination,  and  he  reported  in  favor  of 
the  claimant  for  the  sum  of  $7,599.52,  with  interest.  By  his  report 
he  allowed  for  the  services  rendered  to  the  executor  in  this  manner 
the  sum  of  $8,404.28,  which  was  reduced  by  $500  paid  by  the  execu- 
tor and  a  legacy  of  $500  more  given  by  the  will  of  the  testator.  The 
wife  of  the  claimant  was  the  principal  witness  upon  the  trial,  and 
'  she  testified  that  her  husband  was  the  lessee  of  the  premises  known 
as  959  Third  avenue,  and  that  the  testator  lived  at  that  house.  Her 
testimony  was,  that  in  1877  he  rented  a  room  of  them  and  that  he 
continued  to  occupy  this  room  until  his  decease  in  1888,  taking  his 
meals  at,  or  provided  from,  the  restaurant  kept  in  the  same  building 
by  her  husband.     *     *     *     * 

In  the  disposition  of  the  case  by  the  referee  and  the  confirmation 
of  his  report  by  the  court  at  the  special  term,  the  claimant  was  al- 
lowed to  recover  for  what  the  services  were  stated  to  be  reasonably 
worth.  But  from  the  evidence  of  his  wife  it  appears  that  these  serv- 
ices were  rendered  under  an  agreement  on  the  part  of  the  testator 
that  for  them  he  would  provide  the  wife  with  a  legacy  of  $5,000  in 
his  will.  This  he  failed  to  do,  giving  her  a  legacy  of  only  $500 
which,  when  it  was  received,  was  paid  over  with  the  other  $500  to 
the  husband  as  the  person  entitled  to  the  money.  There  was  no 
dissent  from  the  proposal  of  the  testator  that  he  would  compensate 
the  rendition  of  the  services  by  this  sum  of  $5,000  to  be  bequeathed 
by  his  will.  The  services  were  rendered  and  the  attentions  were  be- 
stowed upon  him  by  the  claimant's  wife,  with  the  understanding  that 
they  should  be  compensated  in  this  manner.  And  the  omission  of 
the  testator  to  make  that  provision  in  the  will,  and  thereby  perform 
the  obligation  of  his  contract,  was  not  attended  with  any  increase 
of  liability  on  his  part  or  on  the  part  of  his  estate.  For  the  sum  of 
$5,000  was  all  that  was  to  be  paid  for  the  services  and  attention 
which  it  was  understood  would  be  required  by  him.  And  they  were 
rendered  upon  the  understanding  that  this  sum  should  form  a  com- 
plete remuneration  on  the  part  of  the  testator.  And  under  this  state 
of  the  facts  the  claimant  was  not  at  liberty  to  recover  for  the  value 
of  the  services  themselves,  but  should  have  been  restricted  to  this 
sum  of  $5,000,  which  the  testator  agreed  to  provide  by  his  will,  but 
in  the  end  failed  to  do.     *     *     *     * 


1 


164  BENEFITS    CONFERRED    UNDER    CONTRACT. 

Judgment  modified  as  directed  in  opinion,  and  as  modified  af- 
firmed.^ 


HUDSON  V.  HUDSON. 

87  Ga.  678.— 1891. 

Lumpkin,  J. — i.  An  old  and  infirm  fatlier  proposed  to  one  of  his 
sons  that  if  the  latter  would  remove  from  his  own  home  to  that  of 
the  former,  and  attend  to  and  take  care  of  him  during  his  lifetime, 
he  would  will  to  the  son  his  home  place.  The  son  accepted  this 
ofifer,  and,  according  to  the  evidence,  complied  faithfully  with  his 
part  of  the  contract.  Some  time  after  his  removal  to  his  father's 
place,  the  old  man  became  insane,  and  remained  in  that  condition 
until  his  death,  so  that  it  was  impossible  for  him  to  make  the  prom- 
ised will.  Nevertheless  the  son  continued  his  ministrations  until 
the  father's  death.  The  old  man  required  constant  nursing  and  at- 
tention. Most  of  the  time  he  was  altogether  as  helpless  as  an  in- 
fant, and  the  care  of  him  involved  considerable  time,  watchfulness, 
and  labor,  and  the  performance  of  services  menial  and  disagree- 
able in  the  highest  degree.  From  all  the  circumstances  shown  by 
the  proof  it  is  perfectly  manifest  that  when  the  arrangement  be- 
tween the  father  and  son  was  originally  entered  into  both  parties 
contemplated  that  the  son  would  be  entitled  to  and  should  receive 
compensation  for  his  services,  and  it  was  not  a  case  in  which  it  was 
expected  that  the  services  would  be  performed  on  account  of  mere 
filial  duty  and  afifection.  It  also  appears  that  the  son  received  $96 
per  year,  which  came  to  the  father  as  a  pension  from  the  govern- 
ment, and  that  he  received  and  used  the  rents,  issues,  and  profits 
of  the  father's  land  and  stock  thereon,  in  excess  of  what  was  re- 
quired for  the  father's  support.  It  was  certainly  not  incumbent  on 
the  son,  after  the  father  became  insane,  and  consequently  incapable 
of  making  the  promised  will,  to  abandon  his  part  of  the  contract ; 
but  he  had  the  right,  and  it  was  his  duty,  to  continue  taking  care 
of  his  father  as  he  had  agreed  to  do.    The  latter  having  become  un- 

'Upon  appeal  to  the  Court  of  Appeals,  131  N.  Y.  314  (1892),  this  judgment 
was  reversed  and  the  judgment  upon  the  referee's  report  was  affirmed,  the 
court  saying  upon  the  measure  of  recovery :  "The  fact  of  the  mention  by 
the  testator,  in  his  first  interview  with  Mrs.  Porter,  of  an  intention  to  give 
her  $5,000  in  his  will,  is  not  such  a  fact  in  relation  to  evidence  of  value  as 
to  authorize  tnis  reduction.  He  may  have  spoken  in  good  faith,  while  Mrs. 
Porter  listened,  and  believed  and  probably  hoped,  but  where  are  the  elements 
of  an  agreement,  or  how  docs  the  promise  of  a  testamentary  gift,  not  per- 
formed, operate  to  restrict  the  plaintiff's  right  to  recover  for  the  value  of 
his  wife's  services?  And  how  can  such  a  promise  tend  to  prove  or  affect 
the  reasonal)lc  value  of  the  .services  as  thereafter  rendered?  I  do  not  think 
that  any  inference  can  be  drawn  from  the  fact  of  a  promised  gift  by  will, 
except  that  of  a  purpose  to  enlist  and  retain  the  services  of  the  wife  and  the 
attentions  of  the  family." 


BREACH    OF    CONTRACT.  I65 

able  to  comply  with  his  part  of  the  contract,  the  son  had  a  ri.q-ht  to 
regard  it  as  one  that  never  could  be  literally  performed ;  and  the 
existing-  circumstances  were  such  as  to  justify  him  in  continuing 
to  render  the  necessary  services  to  his  father,  with  the  right  to  be 
paid  for  the  same.  Indeed,  it  was  held  in  Lisk  v.  Sherman,  25  Barb. 
433,  a  case  very  similar  to  this,  that  the  plaintiff  was  entitled  to 
recover  only  the  actual  intrinsic  value  of  the  services  rendered  for 
the  time  they  were  rendered,  and  according  to  their  kind  and  char- 
acter, without  reference  to  the  contract  or  the  value  of  the  property 
which  deceased  had  agreed  to  leave  him  as  compensation  for  such 
services.  Again,  in  Graham  v.  Graham's  Ex'rs,  34  Pa.  St.  475,  it 
was  held  that  a  parol  contract  of  a  decedent  to  give  to  the  plaintiff 
a  certain  portion  of  his  estate  in  consideration  of  services  rendered 
could  only  be  enforced  when  clearly  proved,  and  when  its  terms 
were  distinct  and  certain ;  and  also,  that  the  measure  of  damages 
for  the  breach  of  such  a  promise  was  the  value  of  the  services  ren- 
dered, and  not  the  proportion  of  decedent's  estate  promised  to  be 
given.  See,  also,  Thompson  v.  Stevens,  71  Pa.  St.  161.  If,  by  a 
proceeding  in  the  nature  of  a  bill  to  compel  a  specific  performance 
of  the  father's  contract  the  plaintiff  would  be  entitled  to  recover  the 
home  place  from  the  administrator  of  his  father,  he  would,  of  course, 
be  obliged  to  account  for  wdiat  he  had  already  received  in  money, 
rents,  etc.,  during  the  lifetime  of  the  deceased.  This  being  true, 
and  it  being  manifest  from  the  evidence  that  the  son  is  undoubtedly 
entitled  to  compensation  in  some  way  for  his  services,  it  seems  the 
fairest  and  best  way  of  adjusting  these  matters  is  to  allow  the  son 
to  recover  of  the  administrator,  upon  a  quantum  meruit,  the  actual 
value  of  his  services ;  but  the  amount  must  in  no  event  exceed  the 
value  of  the  home  place,  and  he  must  account  for  and  have  de- 
ducted from  the  full  amount  he  is  entitled  to  all  he  has  received 
from  the  property  of  the  father  over  and  above  what  was  necessary 
for  the  support  and  maintenance  of  the  latter  during  his  lifetime. 
The  above  authorities  sustain  the  propriety  of  giving  this  direction 
to  the  case.  By  his  declaration,  as  amended,  the  plaintiff  simply 
seeks  to  recover  what  his  services  were  worth,  and  after  much  con- 
sideration we  regard  this  as  the  proper  and  legal  way  to  solve  the 
problem,  and  accordingly  so  direct. 

2.  It  is  manifest,  without  discussion,  that  whatever  may  have 
been  the  original  contract  between  the  father  and  son,  it  could  not 
be  changed  by  any  agreement  or  understanding,  if  there  were  such, 
made  by  the  children  after  the  father  became  insane.     *     *     *     * 

Judgment  affirmed.^ 

*  See  also,  Ham  v.  Goodrich,  37  N.  H.  185,  ante  p.  105,  note. 


l66  BENEFITS    CONFERRED    UNDER    CONTRACT. 

HUNT  V.  SILK. 
5  East  (K.  B.)  449.— 1804. 

IN  assumpsit  for  money  had  and  received.  On  the  31st  of  August, 
1802,  an  agreement  of  that  date  was  made  between  the  parties, 
whereby  the  defendant,  in  consideration  of  10/.  to  he  paid  at  the 
time  of  executing  the  lease  after  mentioned,  and  for  other  consider- 
ations therein  stated,  agreed  that  within  ten  days  from  the  date 
thereof  he  would  grant  to  the  plaintiff  a  lease  of  a  certain  dwelling- 
house  for  nineteen  years  (determinable  by  the  plaintiff  in  five,  ten, 
or  fifteen  years)  from  the  29th  of  September  then  next  (but  pos- 
session to  be  immediately  given  to  the  plaintiff),  at  the  yearly  rent 
of  63/.  And  the  defendant  also  agreed  at  his  own  expense  to  make 
certain  alterations  in  the  premises,  and  that  the  premises,  fixtures, 
and  things  should  at  the  time  of  executing  the  lease  be  put  in  com- 
plete repair.  And  the  plaintiff,  in  consideration  of  the  aforesaid, 
agreed  to  accept  the  lease  at  the  rent  and  in  manner  aforesaid,  and 
to  execute  a  counterpart,  and  pay  the  rent.  The  plaintiff  took  im- 
mediate possession  of  the  premises  under  the  agreement,  and  paid 
the  10/.  at  the  same  time,  in  confidence  that  the  alterations  and  re- 
pairs stipulated  for  would  be  done  within  the  ten  days ;  but  that 
period  and  some  days  after  having  elapsed,  and  nothing  being  done, 
notwithstanding  several  applications  to  the  defendant  to  perform  the 
work,  the  plaintiff  quitted  the  house,  giving  the  defendant  notice 
of  his  having  rescinded  the  agreement  in  consequence  of  the  de- 
fendant's default,  and  brought  this  action  to  recover  back  the  money 
he  had  paid.  Lord  Ellenborough,  however,  thought  that  the 
plaintiff  was  too  late  to  rescind  the  contract,  and  that  his  only  rem- 
edy was  on  the  special  agreement,  and  therefore  directed  a  non-suit. 
Which 

Reader  now  moved  to  set  aside  and  to  have  a  new  trial,  on  the 
authority  of  Giles  v.  Edwards,  7  T.  R.  181. 

Lord  Ellenborough,  C.  J. — Without  questioning  the  authority 
of  the  case  cited,  which  I  admit  to  have  been  properly  decided,  there 
is  this  difference  between  that  and  the  present ;  that  there  by  the 
terms  of  the  agreement  the  money  was  to  be  paid  antecedent  to  the 
cording  and  delivery  of  the  wood,  and  here  it  was  not  to  be  paid 
till  the  repairs  were  done  and  the  lease  executed.  The  plaintiff  there 
had  no  opportunity  by  the  terms  of  the  contract  of  making  his  stand, 
to  see  whether  the  agreement  were  performed  by  the  other  party 
before  he  paid  his  money,  which  the  plaintiff  in  this  case  had ;  but 
instead  of  making  his  stand,  as  he  might  have  done,  on  the  defend- 
ant's non-performance  of  what  he  had  undertaken  to  do,  he  waived 
his  right,  and  voluntarily  paid  the  money ;  giving  the  defendant 
credit  for  his  future  performance  of  the  contract,  and  afterward 
continued  in  possession  notwithstanding  the  defendant's  default. 
Now  where  a  contract  is  to  be  rescinded  at  all,  it  must  be  rescinded 


BREACH    OF   CONTRACT.  167 

in  toto,  and  the  parties  put  in  statu  quo.  But  here  was  an  inter- 
mediate occupation,  a  part  execution  of  the  agreement,  which  was 
incapable  of  being  rescinded.  If  the  plaintiff  might  occupy  the 
premises  two  days  beyond  the  time  when  the  repairs  were  to  have 
been  done  and  the  lease  executed,  and  yet  rescind  the  contract,  w^hy 
might  he  not  rescind  it  after  a  twelvemonth  on  the  same  account? 
This  objection  cannot  be  gotten  rid  of;  the  parties  cannot  be  put 
in  statu  quo. 

Grose,  J.,  of  the  same  opinion. 

Lawrence,  J. — In  the  case  referred  to,  where  the  contract  was  re- 
scinded, both  parties  were  put  in  the  same  situation  they  were  in 
before.  For  the  defendant  must  at  any  rate  have  corded  his  wood 
before  it  was  sold.  But  that  cannot  be  done  here  where  the  plain- 
tiff has  had  an  intermediate  occupation  of  the  premises  imder  the 
agreement.  If  indeed  the  10/.  had  been  paid  specifically  for  the  re- 
pairs, and  they  had  not  been  done  within  the  time  specified,  on  which 
the  plaintiff  had  thrown  up  the  premises,  there  might  have  been 
some  ground  for  the  plaintiff's  argument  that  the  consideration  had 
wholly  failed ;  but  the  money  was  paid  generally  on  the  agreement, 
and  the  plaintiff  continued  in  possession  after  the  ten  days,  which 
can  only  be  referred  to  the  agreement. 

Le  Blanc,  J. — The  plaintiff  voluntarily  consented  to  go  on  upon 
the  contract  after  the  defendant  had  made  the  default  of  which  he 
now  wishes  to  avail  himself  in  destruction  of  the  contract.  But  the 
parties  cannot  be  put  in  the  same  situation  they  were  in,  because  the 
plaintiff  has  had  an  occupation  of  the  premises  under  the  agreement. 

Rule  refused.^ 

^In  Bannister  v.  Read,  6  111.  92  (1844),  the  court  says  (p.  99)  :  "Although 
one  party  to  a  contract  may  not  alone  rescind  it,  he  may,  nevertheless,  by 
neglecting  or  refusing  to  perform  it  on  his  part,  place  it  in  the  power  of  the 
other  party,  where  he  is  not  also  derelict,  to  avoid  it,  or  not,  at  his  pleasure. 
The  breach  of  one  party  may,  in  such  case,  be  treated  by  the  other  as  an 
abandonment  of  the  contract,  authorizing  him,  if  he  choose  to  do  so,  to 
disaffirm  it ;  and  thus,  the  assent  of  both  parties  to  the  rescission  of  the  con- 
tract is  sufficiently  manifested,  that  of  the  one,  by  his  neglect  or  refusal 
to  perform  his  part  of  the  contract  and  of  the  other  by  his  suing,  not  for 
such  breach,  but  for  the  value  of  any  act  done,  or  payment  made  by  him  un- 
der the  contract,  as  if  it  had  never  existed.  Webster  v.  Enfield,  5  Gil.  R.  300, 
and  cases  cited.  Clark  v.  Greene,  4  Pick.  114;  Gillet  v.  Maynard,  5  Johns. 
85 ;  Weaver  v.  Bently.  i  Caines,  47 ;  Chitty  on  Contracts,  249 ;  Richards  v. 
Allen,  17  Maine  (5  Shepley)  299;  Butts  v.  Huntly,  i  Scam.  410;  Herring- 
ton  V.  Hubbard,  lb.  569;  Reed  v.  Phillips,  4  do.  40;  Longworth  v.  Taylor,  i 
McLean  405." 

In  De  Montague  v.  Bacharach,  181  Mass.  256  (1902),  plaintiff  claimed 
to  have  obtained  the  right  from  defendant  to  run  a  restaurant  for  two  years 
in  a  basement,  part  of  which  was  occupied  by  defendant's  bar.  After  ten 
months  defendant  refused  to  allow  him  to  use  the  basement  any  longer,  and 
plaintiff  sued  to  recover  back  what  he  had  thus  far  paid.  The  court  said: 
"The  second  ground  on  which  the  plaintiff  seeks  to  keep  his  verdict  is  that, 
on  the  breach  of  the  contract  by  the  defendants,  he  was  entitled  to  rescind 
the  contract  and  recover  from  the  defendants  what  he  paid  under  it.  But 
as  was  said  in  Handforth  v.  Jackson,  150  INIass.  149,  154,  22  N.  E.  634,  in 
case  a  plaintiff  wishes  to  rescind,  the    defendant    is    'entitled    to    have    his 


(§) 


BENEFITS    CONFERRED    UNDER   CONTRACT. 


SKUDERA  V.  THE  METROPOLITAN  LIFE  INSURANCE 

COMPANY. 

ly  Misc.  367  (N.  Y.  Supreme  Ct.,  Appellate  Term). — 1896. 

BiscHOFF,  J. — The  action  was  in  assumpsit  to  recover  the  pre- 
miums paid  upon  five  several  pohcies  of  hfe  insurance  which  were 
alleged  to  have  been  wrongfully  forfeited  by  the  insurer ;  and  the 
judgment  appealed  from  being  one  of  non-suit  the  plaintiff  is  en- 
titled to  a  construction  of  the  evidence  most  favorable  to  her.  Mc- 
Nally  V.  Phoenix  Ins.  Co.,  137  N.  Y.  389, 

Observing  the  rule  stated,  the  case,  as  developed  upon  the  trial, 
was  that  during  the  years  1882  and  1883  the  plaintiff  effected  five 
policies  of  life  insurance  in  the  defendant  company,  upon  each  of 
vv'hich  policies  she  regularly  paid  the  weekly  premiums  as  they 
matured  until  IMarch,  1895,  amounting  in  the  aggregate  to  $165.95  ; 
and  that  thereafter  the  defendant  unjustifiably  assumed  to  forfeit 
each  of  such  policies  for  non-performance  of  a  condition  subsequent, 
to  wit :  The  payment  of  premiums  maturing  subsequently  to  those 
actually  paid. 

The  question  which  arose  upon  the  motion  of  the  defendant's 
counsel  for  dismissal  of  the  complaint  was  solely  with  regard  to  the 
plaintiff's  right  to  recover  in  assumpsit,  as  for  money  had  and  re- 
ceived by  the  defendant  to  her  use,  the  premiums  paid ;  and  we 
concur  in  the  justice's  decision  that  the  plaintiff  had  mistaken  her 
remedy. 

Granting  that  upon  the  defendant's  breach  the  plaintiff  could 
treat  the  contract,  with  regard  to  each  of  the  policies,  as  deter- 
mined, it  does  not  follow  that  the  defendant  was  bound  ex  aequo  ef 
bono  to  restore  the  premiums  received  by  it,  for  which,  in  part,  at 
least,  the  plaintiff  had  had  value  in  the  risk  assumed  by  the  defend- 
ant. Plainly,  the  plaintiff  could  not  predicate  a  rescission  of  the 
contract  of  the  defendant's  breach  without  restitution  by  her  of 
what  she  had  received  under  the  contract,  and  a  contract  of  life 
insurance  being  essentially  indivisible  in  point  of  performance  by 
either  of  the  parties  thereto  (Cohen  v.  N.  Y.  Mut.  Life  Ins.  Co., 
50  N.  Y.  610),  such  restitution  was  in  the  nature  of  things  impos- 
sible. Wharton  on  Contracts,  §  748;  Clark  on  Contracts,  774; 
Hunt  V.  Silk,  5  East  783. 

property  restored  to  him,  not  to  have  its  value  fixed  by  a  jury';  and  it  is 
settled  that  a  plaintiff  cannot  rescind  a  contract  on  the  defendant  committing 
a  breach  of  it,  witliout  putting  the  defendant  in  statu  quo.  Leonard  v.  Mor- 
gan, 6  Gray  412;  Bassett  v.  Percival,  5  Allen  345;  Handforth  v.  Jackson,  150 
Mass.  149,  22  N.  E.  634;  Marston  v.  Curtis,  163  Mass.  296,  302,  39  N.  E.  11 13; 
Gassett  V.  Glazier,  165  Mass.  473,  480,  43  N.  E.  193.  In  the  case  at  bar  the 
plaintiff  had  enjoyed  the  privilc,r?^e  of  conducting  the  restaurant  for  at  least  ten 
months.  For  that  reason  he  could  not  put  the  defendants  in  statu  quo,  and 
therefore  could  not  rescind  the  contract  on  the  defendants  committing  a 
breach  of  it." 


IMPOSSIBILITY    OF    PERFORMANCE. 

In  a  case  such  as  the  one  at  bar,  if  the  insured  is  unwilhng-  to 
await  the  maturity  of  the  poHcy  and  then  to  test  its  continued  vi- 
tality, only  two  remedies  are  available,  the  insured  may  either  sue 
at  law  for  damages  for  the  insurer's  breach  of  contract,  or  prose- 
cute an  action  in  equity  to  have  the  policy  adjudo^ed  to  be  in  force 
and  the  insurer  to  accept  the  premium  refused.  Sutherland  on 
the  Meas.  of  Dam.,  §  838 ;  Spcer  v.  Phoenix  Alut.  Life  Ins.  Co.,  36 
Hun  323;  Day  v.  Conn.  Gen.  Life  Ins.  Co.,  45  Conn.  480;  29  Am. 
Rep.  693 ;  Hayner  v.  Am.  Pop.  Life  Ins.  Co.,  69  N.  Y.  435 ;  Cohen 
v.  N.  Y.  Mut.  Life  Ins.  Co.,  supra. 

The  case  at  bar  should  be  distinj^uished  from  the  case  where  the 
failure  of  consideration  for  the  premiums  paid  is  entire  in  that  the 
risk  to  be  assumed  by  the  insurer  under  the  policy  never  attached, 
the  policy  being  avoided  for  non-compliance  with  a  condition  prece- 
dent, fraud,  or  other  causes.  1 1  Am.  &  Eng.  Ency.  of  Law  345 ; 
Delavigne  v.  United  Ins.  Co.,  i  Johns.  Cas.  310;  Fulton  v.  Met. 
Life  Ins.  Co.,  4  Misc.  Rep.  y6 ;  Miller  v.  Union  Cent.  Life  Ins.  Co., 
86  Hun  6. 

Judgment  affirmed,  with  costs. ^ 


d.     Impossibility  of  Performance. 
i.     Plaintiff  in  Default. 

SIEGEL,  COOPER  &  CO.  v.  EATON  &  PRINCE  CO. 

165  III.  550.— 1897. 

This  is  an  action  by  appellee,  against  appellant,  begun  in  the  cir- 
cuit court  of  Cook  county,  to  recover  money  due  appellee  under  a 
contract  to  construct  an  elevator  in  a  building  belonging  to  appel- 
lant, which  was  destroyed  during  the  progress  of  the  work.  The 
whole  contract  price  was  $2,500,  payable  as  the  work  progressed, 
as  follows:  One-half  when  engine  is  on  foundation,  and  final  pay- 
ment to  be  due  and  payable  when  the  elevator  is  put  up  in  good 
running  order.  The  first  count  of  the  declaration,  which  is  in  as- 
sumpsit, sets  up  the  contract,  and  alleges  that  the  engine  mentioned 
therein  was  on  the  foundation  prior  to  the  fire,  and  claims  a  right 
to  recover  $1,250  by  the  terms  of  the  contract ;  the  second  count  also 
sets  up  the  contract,  and  alleges  the  performance  of  work  and  fur- 
nishing of  materials  by  plaintiff  of  the  value  of  $2,000,  when,  with- 
out his  fault,  the  building  was  destroyed.  The  plea  is  the  general 
issue. 

*  Contra,  upon  the  ground  that  defendant  has  paid  nothing  and  plaintiff 
has  received  nothing  of  appreciable  advantage.  Van  Werden  v.  Equitable 
Life  Assur.  Soc,  99  Iowa  621   (1S96),  and  cases  cited  therein. 


170  BENEFITS    CONFERRED    UNDER    CONTRACT. 

The  cause  was  tried  on  the  following  stipulation :  "It  is  hereby 
stipulated  and  agreed  that  the  plaintiff  and  defendant  entered  into 
the  contract  hereto  annexed  on  the  first  day  of  June,  1891  ;  that 
under  the  said  contract  the  plaintiff,  on  the  first  day  of  August, 
1891,  had  the  engine  mentioned  therein  on  its  foundation,  but  not 
leveled  nor  fastened  to  said  foundation,  and  had  prepared  material 
and  done  labor  under  said  contract  to  the  total  value  of  $1,390; 
that  neither  the  cabs,  the  cage,  nor  the  cable  for  the  same  was  on 
said  premises  at  the  time  the  premises  of  Siegel,  Cooper  &  Co. 
were  destroyed  by  fire ;  that  the  engine  had  been  placed  on  the 
foundation  about  6  o'clock  on  Saturday  afternoon,  August  i,  1891  ; 
that  fire  destroyed  the  premises  of  Siegel,  Cooper  &  Co.,  in  which 
said  elevator  and  machinery  therefor,  under  said  contract,  were  to 
be  placed,  and  broke  out  about  7:30  o'clock  on  Monday  morning, 
August  3,  1891 ;  that  all  work  to  be  done  under  the  contract  had 
not  been  performed  when  the  premises  were  destroyed  by  fire ;  that 
the  premises  were  destroyed  by  fire  without  the  fault  of  either 
party  to  the  contract,  and  nothing  had  been  paid  to  the  Eaton  & 
Prince  Company  by  Siegel,  Cooper  &  Co.  under  or  upon  the  said 
contract ;  that  defendant  had  the  hatchways  ready  for  the  elevator 
work  on  July  10,  1891,  and  plaintiff  had  the  uninterrupted  use  of 
the  hatchways  on  and  after  that  date.  It  is  further  stipulated  that 
the  jury  in  this  case  shall  be  waived,  and  the  same  submitted  to  the 
court  for  trial  without  a  jury." 

The  plaintiff  recovered  judgment  for  $1,390 — the  full  value  of 
material  furnished  and  labor  done.  That  judgment  has  been  af- 
firmed by  the  Appellate  Court. 

The  trial  court  held  the  following  propositions  in  the  decision  of 
the  case : 

"The  court  holds,  as  a  matter  of  law,  that  if  the  plaintiff  made 
and  entered  into  the  contract  in  evidence  with  the  defendant  for  the 
construction  of  an  elevator  and  appurtenances,  as  set  forth  in  said 
contract ;  that  work  under  said  contract  had  so  far  progressed  that 
the  engine  thereof  had  been  placed  upon  its  foundation,  and  that 
afterwards,  and  without  fault  on  the  part  of  the  plaintiff,  the  build- 
ing in  which  the  said  elevator,  with  its  appurtenances,  etc.,  was  to 
be  placed  or  constructed,  was,  on  or  about  August  i,  1891,  de- 
stroyed by  fire,  then  the  plaintiff  was  excused  from  further  com- 
pliance with  said  contract,  and  is  entitled  to  recover  of  and  from 
the  defendant  the  sum  of  $1,250,  with  interest  thereon  at  the  rate 
of  5  per  cent,  per  annum  from  said  August  i,  1891." 

"And  the  court  further  holds,  that  if  the  plaintiff  set  about  the 
performance  of  said  contract  and  prepared  material  and  machinery 
in  accordance  with  the  terms  of  said  contract,  and  delivered  a  part 
thereof  to  the  building  in  which  said  elevator  and  its  appurtenances 
was  to  be  constructed  or  built,  and  that  afterwards,  and  on  or  about 
the  first  day  of  August.  1891,  the  said  building  in  which  said  elevator 
was  being  constructed  was  destroyed  by  fire  without  the  fault  of 
the  plaintiff,  then,  as  a  matter  of  law,  the  plaintiff  is  entitled  to 


IMPOSSICILITV    OF    PERFOmiANCE.  I/l' 

recover  of  and  from  the  defendant  the  full  value,  to  be  determined 
by  the  evidence  or  stipulation  of  the  parties,  of  all  work  done  and 
material  prepared  and  delivered  to  said  building,  pursuant  to  said 
contract,  prior  to  the  happening  of  the  fire." 

Mr,  Justice  Wilkin. — It  is  insisted  that  the  court  erred  in  hold- 
ing the  propositions  set  forth  in  the  statement  and  in  refusing 
counter  propositions  asked  by  appellant,  its  contention  being  that  the 
contract  is  an  entire  one,  ancl,  the  building  in  which  the  elevator  was 
to  be  placed  having  been  destroyed  by  fire  before  the  time  for  final 
payment,  without  any  fault  of  either  party,  no  recovery  for  the 
work  done  or  materials  furnished  could  be  had. 

As  will  be  seen  from  the  plaintiff's  declaration,  it  proceeded  on 
two  theories :  First,  that  the  contract  was  not  an  entire  one,  so  far 
as  the  payments  were  concerned ;  and  second,  even  if  it  was,  under 
the  law  plaintiff'  was  entitled  to  recover  the  value  of  the  work  done 
and  materials  furnished  prior  to  the  destruction  of  the  building. 
The  judgment  is  upon  this  last  theory,  and  is  based  upon  the  law  as 
stated  in  the  second  of  the  above  propositions. 

The  theory  upon  which  the  second  proposition  is  based  is,  that 
under  the  contract  requiring  the  elevator  to  be  placed  in  a  par- 
ticular building  it  was  the  duty  of  defendant  to  furnish  and  pro- 
vide that  building,  and  therefore  it  is  liable,  even  though  the  destruc- 
tion was  without  its  fault.  The  rule  of  law,  as  we  understand  it,  is 
otherwise.  Thus,  in  Addison  on  Contracts,  sec.  554,  it  is  said : 
"Where  a  man  contracts  to  expend  material  and  labor  on  a  building 
belonging  to  and  in  the  occupation  of  the  employer,  to  be  paid  for 
on  completion  of  the  whole,  and  before  the  completion  the  buildings 
are  destroyed  by  accidental  fire,  the  contractor  is  excused  from  the 
completion  of  the  work,  but  is  not  entitled  to  any  compensation  for 
the  work  already  done,  which  perished  without  any  fault  of  the 
employer."  This  doctrine  is  sustained  by  Brumby  v.  Smith,  3  Ala. 
123 ;  Lord  v.  Wheeler,  i  Gray  282,  and  Gillon  v.  Toudy,  5  W.  N.  C. 
(Pa.)  528.  The  rule  seems  to  be  adduced  from  the  case  of  Appleby 
v.  Meyers,  L.  R.  2  C.  P.  651.  In  that  case  the  action  was  to  re- 
cover for  a  part  performance  on  a  contract  to  furnish  and  attach  to 
a  building  of  the  defendant  certain  machinery,  to  be  paid  for  upon 
the  completion  of  the  work.  The  premises,  together  with  part  of 
plaintiff's  materials,  were  destroyed  by  fire  Ijefore  the  contract  was 
completed.  It  was  held  that  there  was  no  right  of  action,  the  court 
saying:  "We  think  when,  as  in  the  present  case,  the  premises  are 
destroyed  without  fault  on  either  side,  it  is  a  misfortune  equally 
affecting  both  parties,  excusing  both  from  further  performance  of 
the  contract,  but  giving  a  cause  of  action  to  neither."  See  Bishop 
on  Contracts,  sec.  588. 

It  is  insisted  by  counsel  for  appellee,  and  the  decision  of  the 
Appellate  Court  is  in  conformity  with  that  contention,  that  a  differ- 
ent rule  is  announced  in  Cleary  v.  Sohier,  120  Mass.  210,  and 
Rawson  v.  Clark,  70  111.  656.  We  do  not  so  understand  either  of 
these  cases.     The  Massachusetts  case  was  upon  an  oral  contract 


172  BENEFITS    CONFERRED    UNDER    CONTRACT. 

to  lath  and  plaster  a  certain  building  at  a  certain  price  per  square 
yard.  "No  agreement  zcas  made  and  nothing  was  said  as  to  terms 
or  times  of  payment,  but  only  that  the  work  was  to  be  done  for 
40  cents  per  yard."  A  certain  part  of  the  work  being  done,  the 
building  was  destroyed  without  the  fault  of  either  party.  The 
amount  claimed  by  plaintiff  was  $474,  the  reasonable  value  of  the 
work  done.  All  that  is  said  by  the  court  in  the  decision  of  the  case 
is:  "The  building  having  been  destroyed  by  fire  without  the  fault 
of  the  plaintiff,  so  that  he  could  not  complete  his  contract,  he  may 
recover  under  a  count  for  work  done  and  materials  furnished," 
citing  Lord  v.  Wheeler,  supra,  and  Wells  v.  Colman,  107  Mass. 
514.  This  in  no  way  conflicts  with  Appleby  v.  Meyers,  supra,  for 
it  was  said  in  that  case :  "It  is  quite  true  that  materials  worked  by 
one  party  into  the  property  of  another  become  part  of  that  property. 
This  is  equally  true  whether  it  be  fixed  or  movable  property.  Bricks 
built  into  a  wall  become  part  of  the  house ;  thread  stitched  into  a 
coat  which  is  under  repair,  or  planks  and  nails  and  pitch  worked 
into  a  ship  under  repair,  become  part  of  the  coat  or  the  ship ;  and 
therefore,  generally,  and  in  the  absence  of  something  to  show  a 
contrary  intention,  the  bricklayer  or  tailor  or  shipwright  is  to  be 
paid  for  the  work  and  materials  he  has  done  and  provided,  although 
the  whole  work  is  not  complete.  It  is  not  material  whether  in  such 
case  the  non-completion  is  because  the  shipwright  did  not  choose 
to  go  on  with  the  work,  as  was  the  case  in  Roberts  v.  Havelock,'^  or 
because  in  consequence  of  a  fire  he  could  not  go  on  with  it,  as  in 
Menetone  v.  Athawes.-  But,  though  this  is  the  prima  facie  contract 
between  those  who  enter  into  contracts  for  doing  work  and  supply- 
ing materials,  there  is  nothing  to  render  it  illegal  or  absurd  in  the 
workman  to  agree  to  complete  the  whole  and  to  be  paid  when  the 
whole  is  complete,  and  not  till  then,  and  we  think  the  plaintiffs  in 
the  present  case  had  entered  into  such  a  contract." 

The  case  of  Rawson  v.  Clark  has  no  bearing  whatever  upon  this 
case.  There  the  plaintiff  agreed  to  "manufacture  and  place  in  the 
building"  certain  iron  work  for  a  certain  price,  85  per  cent,  of 
which  was  to  be  paid  on  the  certificate  of  the  architect  as  the  work 
progressed,  and  the  balance,  15  per  cent.,  when  the  work  was  com- 
pleted. The  suit  was  for  the  iron  work  which  had  been  manu- 
factured. The  evidence  showed  that  the  price  agreed  upon  for  man- 
ufacturing the  iron  was  $206,  and  for  putting  it  up  about  $75. 
Upon  the  completion  of  the  manufacturing  of  the  iron  and  the  de- 
livery of  a  small  portion  of  it  the  defendant  notified  the  plaintiff 
that  the  building  was  not  ready  for  the  work,  and  directed  him 
to  send  no  more  until  it  should  be  ready,  promising  to  notify  him 
when  that  time  arrived.  A  week  later  the  building  was  destroyed 
by  fire.  The  time  required  to  put  up  the  work  would  have  been 
about  two  days,  so  that  it  clearly  appeared  in  that  case  that  the 

\3  B.  &  Ad.  404. 
'3  Rnrr.  1592. 


IMPOSSIBILITY    OF    PERFORMANCE.  1/3 

plaintiff  was  prevented  from  completing  the  work,  not  by  the  de- 
struction of  the  building-  by  fire,  but  because  the  defendant  did  not 
have  it  ready  for  the  work  when  the  plaintiff  offered  to  complete 
it,  and  hence  we  said:  "Appellees  were  no  way  in  default.  They 
were  ready  and  offered  to  fully  perform  within  the  time  limited, 
but  were  prevented  by  appellant.  The  reason  of  their  not  entirely 
completing  their  contract  by  placing  the  iron  work  in  the  building 
was  the  default  of  the  defendant  in  not  having  a  building  provided 
for  the  purpose."  This  certainly  does  not  mean  that  they  were  in 
default  in  not  having  a  building  because  it  was  finally  destroyed  by 
fire,  but  because  the  building  "was  not  then  ready  for  the  work,"  etc. 

We  think  the  law  is,  that  where  a  contract  is  entered  into  with 
reference  to  the  existence  of  a  particular  thing,  and  that  thing  is 
destroyed  before  the'  time  for  the  performance  of  the  contract, 
without  the  fault  of  either  party,  both  parties  are  excused  from  per- 
forming the  contract,  but  neither  is  entitled  to  recover  anything  for 
a  part  performance  thereof.  It  remains,  however,  to  be  determined 
whether  this  contract  is  an  entire  contract  within  that  rule.  It  will 
be  seen  that  by  its  terms  payment  was  to  be  made,  not  upon  the 
completion  of  the  work,  but  "as  the  work  made  progress,  as  fol- 
lows :  One-half  when  the  engine  is  on  foundation,  and  final  pay- 
ment to  be  due  and  payable  when  the  elevator  is  put  up  in  good 
running  order,"  thus  clearly  providing  for  payment  by  instalments. 
Counsel  insist,  however,  that  this  does  not  destroy  the  entirety  of 
the  contract,  because,  they  say,  the  $1,250  was  a  mere  arbitrary 
sum,  fixed  without  reference  to  the  value  of  the  work  done  at  the 
time  designated  for  its  payment,  and  that  the  phrase  "when  the 
engine  is  on  foundation,"  merely  named  an  arbitrary  time  at  which 
a  partial  payment  should  be  made,  without  reference  to  the  value 
of  the  work  and  material  furnished  at  that  time,  and  that  the  pay- 
ment of  the  instalment  in  that  manner  was  merely  for  the  con- 
venience of  the  contractor  and  as  an  evidence  of  good  faith  of  Siegel, 
Cooper  &  Co.  in  completing  its  part  of  the  contract.  If  all  this  were 
true  we  are  unable  to  see  why  the  contract  is  not  severable,  so  far 
as  the  payments  are  concerned.  But  we  do  not  think  the  contract 
is  fairly  susceptible  of  that  construction.  The  $1,250  is  not  a  mere 
arbitrary  sum  fixed  without  reference  to  the  value  of  the  work  done 
at  the  time  of  paying  the  instalment.  Payment  was  to  be  made  as 
the  work  progressed — one-half  when  the  engine  was  on  the  founda- 
tion. The  parties  here  fixed  the  sum,  by  agreement,  which  should 
be  paid  v;hen  the  work  had  progressed  thus  far,  and  presumably 
with  reference  to  the  value  of  the  material  and  labor  then  placed  in 
the  defendant';?  building.  That  it  served  the  convenience  of  the 
contractor  and  evidenced  the  good  faith  of  the  employer  in  no  way 
affects  the  case. 

Parsons,  in  his  work  on  Contracts  (vol.  2,  6th  ed.,  sec.  517), 
speaking  of  the  entirety  of  contracts,  says :  "If  the  part  to  be  per- 
formed by  one  party  consists  of  several  distinct  and  separate  items, 
and  the  price  to  be  paid  by  the  other  is  apportioned  to  each  item 


174  BENEFITS    CONFERRED    UNDER   CONTRACT. 

to  be  performed,  or  is  left  to  be  implied  by  the  law,  such  a  contract 
will  generally  be  held  to  be  severable ;  and  the  same  rule  holds  where 
the  price  to  be  paid  is  clearly  and  distinctly  apportioned  to  different 
parts  of  what  is  to  be  performed,  although  the  latter  is  in  its  nature 
single  and  entire."    See  note  c.  to  the  same  section. 

In  Schwartz  v.  Saunders,  46  111.  17,  Saunders  made  a  contract 
with  Schwartz  to  do  carpenter  work  and  furnish  the  material  there- 
for on  a  brick  building  being  erected,  to  be  paid  for  as  the  work 
progressed,  upon  estimates  to  be  furnished  by  the  architect.  The 
building  was  blown  down  after  an  estimate  of  certain  carpenter  work 
and  before  the  contract  was  completed,  and  it  was  held  that  the  con- 
tractor, under  such  circumstances,  was  justified  in  abandoning  the 
contract,  and  entitled  to  a  mechnic's  lien  for  the  work  done.  It  was 
contended  there,  as  here,  that  the  destruction  of  the  building  ab- 
solved both  parties  and  protected  the  defendant  from  any  action  for 
the  work  done,  the  case  of  Appleby  v.  Meyers,  supra,  being  relied 
upon  to  support  the  contention ;  but  it  was  said  of  the  Appleby  case 
(p.  2^)  :  "This  case  we  have  examined,  and  from  the  statement 
of  it,  it  would  appear  that  the  contract  was  unlike  the  one  between 
these  parties,  which  provides,  in  terms,  that  85  per  cent,  of  the  work 
estimated  by  the  architect  should  be  paid  as  the  work  progressed, 
whilst  in  the  case  cited  no  payment  was  to  be  made  until  the  work 
was  completed,  and  as  it  was  not  completed  the  mechanic  could  not 
recover  for  the  work  he  had  done."  It  is  true  that  there  are  dis- 
tinguishing features  between  that  case  and  this,  prominent  among 
which  is  the  fact  that  there  the  defendant  had  positively  refused  to 
pay  the  architect's  estimate  of  the  work  done  before  the  destruction 
of  the  building,  and  afterwards  refused  to  pay  the  same,  insisting 
that  to  entitle  him  to  pay  therefor  he  was  bound  to  replace  the  work 
destroyed  without  any  compensation,  and  the  plaintiff's  right  to 
abandon  the  work  was  placed  partly  upon  the  refusal  to  pay  and  the 
unjust  demand,  as  well  as  the  destruction  of  the  building.  But  the 
case  does  not  hold  that  where,  by  the  terms  of  a  contract  of  this  char- 
acter, payment  is  to  be  made  as  the  v»'ork  progresses,  the  doctrine  an- 
nounced in  Appleby  v.  ]\Ieyers  has  no  application. 

We  think  that  the  Appellate  Court  properly  ruled  that  plaintiff  was 
entitled  to  recover  under  the  first  count  of  the  declaration,  but 
we  are  unable  to  find  authority  or  satisfactory  reason  upon  which 
to  sustain  the  second.  The  language  "payment  to  be  made  as  the 
work  progresses,"  cannot,  we  think,  be  considered  to  mean  more 
than  that  the  $1,250  should  be  paid  as  stated — that  is,  it  cannot  be 
construed  to  mean  that  payments  after  the  engine  was  on  the 
foundation  should  be  made  as  the  work  progressed,  it  being  ex- 
pressly stated,  "final  payment  to  be  due  and  payable  when  the  ele- 
vator is  put  up  in  good  running  order" — that  is,  when  the  work  was 
complete.  Therefore,  on  a  proper  construction  of  the  contract  the 
second  proposition  should  have  been  refused.  Tiiere  was,  how- 
ever, no  error  in  the  judgment  of  the  trial  court,  because,  under  the 
first  proposition,  which,  as  we  have  seen,  was  properly  held,  the 


IMPOSSIBILITY   OF   PERFORMANCE.  I75 

plaintiff  was  entitled  to  recover  the  $1,250,  with  5  per  cent,  interest 
thereon  from  August  i,  1891,  to  the  date  of  judgment,  July  5,  1895, 
which  amounted  to  considerably  more  than  $1,390  recovered. 

The  judgment  below  will  be  affirmed. 

Judgment  affirmed.^ 

Phillips  and  Cartvvright,  JJ.,  dissenting. 


NIBLO  V.  BINSSE. 
3  Abb.  App.  Dec.  375  (N.  Y.). — 1864. 

William  Niblo,  as  assignee  of  Anthony  E.  Hitchings,  sued  John 
Binsse  and  Louisa  La  Farge,  executors  of  John  La  Farge,  in  the 
Supreme  Court,  for  services  and  materials  under  a  contract  with 
the  defendant's  testator.  The  referee  found  the  following  facts : 
Hitchings  agreed  with  the  testator,  by  contract  dated  April  14,  1853, 
that  Hitchings  should,  by  October,  1853,  furnish  and  set  up  in  the 
La  Farge  House  and  Metropolitan  Hall,  then  building  by  testator  in 
the  city  of  New  York,  steam  engines,  pumps,  and  heating  appa- 
ratus, etc.,  pipes  and  coils,  under  superintendence  of  an  architect 
named,  for  which  the  testator  was  to  pay  him  ten  thousand  dollars, 
as  follows :  seven  thousand  five  hundred  dollars  in  instalments,  as 
certain  parts  of  the  work  should  be  completed ;  fifteen  hundred  dol- 
lars when  all  was  finished,  and  the  balance  when  the  work  was 
"tested  and  found  to  be  sufficient  according  to  the  provisions  of 
this  contract ;"  said  payments  to  be  on  the  certificate  of  the  architect 
that  they  were  due  according  to  the  agreement. 

Hitchings  began  the  work,  and  continued  in  the  execution  of  it 
until  January  7,  1854,  when  the  whole  buildings  were  destroyed  by 

*In  accord  with  the  doctrine  of  this  case,  the  court  held  in  Huyett  &  Smith 
Co.  V.  Chicago  Edison  Co.,  167  111.  233  (1897),  that  where  plaintiff  contracted 
to  construct  a  ventilating  system  in  a  building  for  $1,350,  "payable  thirty  days 
after  completion  and  acceptance,"  plaintiff  could  not  recover  for  any  work 
done,  the  building  having  been  destroyed  by  fire  before  completion  of  the 
work,  without  fault  of  either  party.  Accord,  Krause  v.  Board  of  Trustees, 
70  N.  E.  264  (Ind.  Sup.  Ct.,  1904),  containing  an  extended  discussion. 

In  Appleby  v.  Dods,  8  East  (K.  B.)  300  (1807),  a  seaman  sued  to  recover 
pro  rata  wages  the  voyage  not  having  been  completed  because  the  vessel  was 
lost  at  sea.  The  court  said :  "The  terms  of  the  contract  in  question  are 
quite  clear  and  reasonable :  they  relate  to  a  voyage  out  to  Madeira  and  any 
of  the  West  India  Islands,  and  to  return  to  London;  and  there  is  an  express 
stipulation  'that  no  seaman  shall  demand  or  be  entitled  to  his  wages,  or  any 
part  thereof,  until  the  arrival  of  the  ship  at  the  above-mentioned  port  of  dis- 
charge,' etc. ;  which  must  refer  to  London.  And  though  the  reason  of  this 
stipulation  was,  no  doubt,  to  oblige  the  mariners  to  return  home  with  the 
ship,  and  not  to  desert  her  in  the  West  Indies,  yet  the  terms  of  it  are  general, 
and  include  the  present  case:  and  we  cannot  say,  against  the  express  contract 
of  the  parties,  that  the  seamen  shall  recover  pro  rata,  although  the  ship 
never  did  reach  her  port  of  discharge  named." 


176  BENEFITS    CONFERRED   UNDER   CONTRACT. 

fire  without  any  fault  upon  the  part  of  La  Farge  or  of  Hitchings. 
La  Farge  had  in  the  meantime  paid  Hitchings,  on  account  of  the 
work,  seven  thousand  five  hundred  dollars,  without  any  certificate 
of  the  architect.  Of  this  sum  one  thousand  dollars  was  paid  October 
24,  1853,  and  fifteen  hundred  dollars  on  December  15,  1853,  while 
the  work  was  going  on,  but  after  the  time  when  it  was  to  have 
been  finished,  by  the  terms  of  the  contract.  At  the  time  of  the  fire 
the  work  and  materials  necessary  to  complete  the  contract  would 
have  cost  about  one  thousand  dollars.  Previous  to  the  fire  the  con- 
cert room  had  been  used  for  concerts  several  times,  and  when  so 
used  was  heated  by  the  apparatus  Hitchings  had  put  in ;  but  the  hotel 
had  not  been  opened  for  guests.  After  the  fire  La  Farge  retained 
for  his  own  use  the  remains  of  the  iron  pipe  which  was  put  into  the 
building  by  Hitchings,  and  sold  same  to  the  latter  for  one  thousand 
dollars. 

Hitchings  assigned  to  the  plaintiff  his  claim  to  recover  the  balance 
of  the  ten  thousand  dollars,  to  be  paid  by  the  terms  of  the  con- 
tract for  the  whole  work ;  whereupon  the  plaintiff  brought  this 
action.  The  referee  decided  in  favor  of  the  defendants,  because  the 
work  was  never  fully  completed;  and  judgment  accordingly  was 
entered,  from  which  the  plaintiff  appealed.  The  Supreme  Court, 
at  general  term,  afiirmed  the  judgment,  holding  that  Hitchings  was 
in  default  by  not  having  finished  the  work  according  to  the  contract, 
and  that  his  failure  to  perform  was  not  due  to  the  act  of  God,  of 
the  law,  or  of  the  other  party,  and  that  the  plaintiff's  assignor 
should  have  provided  against  such  a  contingency  by  a  clause  in  the 
contract.  Reported  in  44  Barb.  54.  From  this  judgment  plaintiff 
appealed  to  this  court, 

T.  A.  Johnson,  J. — It  was  held,  both  by  the  referee  and  the 
Supreme  Court  at  general  term,  that  the  plaintiff  was  not  entitled 
to  recover,  merely  because  the  work  was  not  finished  and  the  job 
completed  at  the  time  the  building,  upon  which  the  work  was  being 
done,  was  destroyed  by  fire.  To  my  mind,  this  is  a  very  plain  case  in 
favor  of  the  plaintiff.  The  decision,  very  properly,  was  not  put 
upon  the  ground  that  the  work  was  not  completed  within  the  time 
specified  in  the  agreement,  but  upon  the  naked  ground  that  the  con- 
tractor, having  failed  to  do  all  the  work  he  had  contracted  to  do, 
could  not  maintain  the  action.  It  is  plain,  upon  the  facts  found,  that 
the  time  of  performance  had  been  extended  by  the  mutual  assent  of 
the  parties  to  the  contract.  When  the  time  expired  the  agreement 
was  not  rescinded  or  terminated  by  the  owner  of  the  building,  but 
the  contractor  was  allowed  to  go  on  under  it,  and  in  performance  of 
it,  until  the  building  was  destroyed  by  the  fire.  Payments  were 
marie  in  the  meantime,  and  the  contract  treated  as  in  all  respects 
in  force  by  both  parties.  The  work  was  in  progress,  and  nine-tenths 
of  the  labor  and  expense  had  been  performed  and  incurred  when 
the  further  prosecution  of  the  work  was  arrested  and  its  comple- 
tion prevented  by  the  destruction  aforesaid.  The  case  is  to  be 
treated,  therefore,  precisely  as  though  the  destruction  of  the  build- 


IMPOSSIBILITY    OF    PERFORMANCE.  1/7 

ing  had  occurred  before  October  i,  1853,  when  by  the  terms  of  the 
contract  the  work  should  have  been  finished.  No  principle  of  law  is 
better  settled  than  this,  that  when  one  party  has,  by  his  own  act  or 
default,  prevented  the  other  party  from  fully  performing  his  con- 
tract, the  party  thus  preventing  performance  cannot  take  advantage 
of  his  own  act  or  default,  and  screen  himself  from  payment  for 
what  has  been  done  under  the  contract.  The  law  will  imply  a  prom- 
ise on  his  part  to  remunerate  the  other  party  for  what  has  been 
done  and  support  an  action  upon  such  implied  promise.  2  Pars,  on 
Cont.  35. 

This  case  falls  exactly  within  this  principle  of  law.  Through 
whose  default  was  it  that  the  work  was  not  completed  according  to 
the  contract?  Certainly  not  that  of  Hitchings,  the  contractor;  for 
he  was  ready  and  willing,  and  was  in  act  of  performing,  when  pre- 
vented by  the  destruction  of  the  building.  He  was  a  mere  laborer 
upon  the  building,  having  no  possession  or  control  over  it  for  any 
other  purpose ;  and  the  destruction  of  it  was  through  no  act  or 
agency  of  his.  Manifestly  the  performance  of  the  contract  was  pre- 
vented by  the  default  of  the  other  party,  who  furnished  and  pro- 
vided the  building  upon  which  the  work  was  to  be  done,  as  far  as 
the  work  had  progressed,  but  failed  to  furnish  or  provide  it  for  the 
completion  of  the  work.  It  was  his  building,  in  his  possession,  and 
under  his  exclusive  control ;  and,  as  a  material  and  substantive  part 
of  his  contract,  he  was  to  have  it  in  existence  ready  for  the  work, 
and  continue  it  in  existence,  and  in  a  proper  condition  for  the  work 
to  be  performed  upon  it,  as  long  as  it  was  necessary  under  the  con- 
tract, or  as  long  as  the  contract  was  continued  in  force  by  the  con- 
sent of  the  respective  parties.  If  one  party  agrees  with  another  to 
do  work  upon  house  or  other  building,  the  law  implies  that  the 
employer  is  to  have  the  building  in  existence  upon  which  the  work 
contracted  for  may  be  done.  It  is  necessarily  a  part  of  the  con- 
tract on  the  part  of  such  employer,  whether  it  is  specified  in  it  in 
terms  or  not.  Here  the  defendant's  testator  failed  to  provide  and 
keep  the  building  till  the  work  could  be  completed,  and  thus — and 
thus  only — was  performance  prevented. 

It  is  nothing  whatever  to  the  case  to  say  that  the  building  was  not 
destroyed  through  his  agency  or  fault.  That  fact  is  no  test  of  the 
liability  in  an  action  like  this.  It  would  not  excuse  or  shield  the 
defendants  from  liability,  even  were  the  action  to  recover  as  damages 
the  profits  which  might  have  been  made  on  that  part  of  the  work, 
the  performance  of  which  was  prevented.  The  destruction  was  not 
caused  by  the  act  of  God,  as  appears  by  the  facts  found ;  and  a  de- 
fault from  any  other  cause  will  not  excuse  non-performance. 

This  rule  was  applied  and  enforced  by  this  court  in  Tompkins  v. 
Dudley,  25  N.  Y.  272,  very  properly,  undoubtedly,  though  the  case 
was  a  very  hard  one  for  the  defendants.  The  school-house  which 
they  had  contracted  to  build,  was  substantially  finished,  according 
to  the  contract,  but  it  had  not  been  accepted  by  the  plaintififs,  a 
Woodruff's  Cases — 12 


178  BENEFITS    CONFERRED    UNDER    CONTRACT. 

small  amount  of  painting  and  the  hanging  of  the  window-blinds  re- 
maining to  be  done,  before  the  job  was  finished.  In  this  situation 
the  house  took  fire  and  was  destroyed,  and  the  plaintiffs  were  al- 
lowed to  recover  back  moneys  they  had  advanced  on  the  contract, 
and  damages  for  its  non-performance.  It  was  a  casualty  not  pro- 
vided against  in  the  contract,  which  the  defendants  had  bound  them- 
selves fully  to  perform.  This  rule,  it  will  be  seen,  applies  with  full 
force  against  the  defendants  in  this  action,  but  in  no  respect  is  it 
applicable  to  the  plaintiffs.  The  defendant's  testator  was  to  provide 
the  building  in  which  the  work  was  to  be  done.  That  was  part  of 
his  obligation,  and  he  had  not  provided  for  the  contingency  of  its 
accidental  destruction  during  the  continuance  of  the  work,  by  his 
agreement.  The  plaintiff's  assignor  had  no  occasion  to  provide,  in 
the  contract,  for  the  default  of  the  other  party  in  the  performance 
of  his  part  of  the  obligation.  The  law  provides  for  that.  It  was 
never  heard  that  the  contract  must  provide  against  the  default  of 
a  party,  in  order  to  give  a  remedy  to  the  other  party  v/ho  is  affected 
injuriously  by  it;  unless,  indeed,  some  extraordinary  remedy  is 
sought,  which  the  law,  without  an  express  stipulation,  does  not  give. 
The  obligation  of  the  defendant's  testator  seems  to  have  been  en- 
tirely overlooked  in  the  Supreme  Court,  or  else  it  was  assumed  that 
the  destruction  of  the  building  did  not  place  him  at  all  in  default, 
unless  he  had  some  agency  in  such  destruction,  by  which  the  per- 
formance was  prevented.  This  I  regard  as  a  fallacy,  and  it  is  this, 
obviously,  which  produced  the  erroneous  judgment  against  the 
plaintiff. 

The  case  of  Menetone  v.  Athawes,  3  Burr.  1592,  is  very  much 
in  point  here.  The  plaintiff  was  employed  to  make  certain  specified 
repairs  upon  a  vessel  lying  at  his  own  ship-yard.  Before  the  repairs 
were  completed,  a  fire  broke  out  in  a  neighboring  store,  and  ex- 
tended to  the  vessel  and  destroyed  it.  The  defendant  in  that  case,  as 
in  this,  contended  that  the  plaintiff  could  not  recover,  because  his 
agreement  to  repair  was  not  fully  performed.  But  it  was  held,  that 
the  plaintiff  was  entitled  to  recover,  pro  tanto,  for  the  work  and  ma- 
terials, as  far  as  he  had  gone  in  the  performance  of  his  undertaking. 
This  seems  to  be  the  settled  rule  in  all  cases  between  bailor  and 
bailee,  when  the  article  is  delivered  to  the  latter,  to  be  repaired  or 
wrought  into  a  new  form,  and  is  accidentally  destroyed  before  the 
work  is  finished  and  ready  for  delivery,  without  the  fault  of  the 
mechanic.  The  loss  in  such  case  falls  upon  the  owner  of  the  article, 
and  he  must  answer  for  the  labor  already  bestowed  and  the  ma- 
terials, if  any  furnished.  2  Kent  Com.  590;  Story  on  Bailm., 
§  426,  a;  Gillett  v.  Mawman,  i  Taunt.  137.  It  may  perhaps  be  dif- 
ferent in  such  a  case,  where  the  work  is  done  upon  an  express  con- 
tract as  a  job,  because  the  owner  by  delivering  the  article  to  the  me- 
chanic has  done  all  he  could  do.  He  has  performed  so  far  all  that 
was  within  the  contemplation  of  the  parties,  and  all  the  law  could 
require  of  him,  and  it  would  be  impossible  for  the  mechanic  in  pos- 
session to  allege  that  he  was  prevented  from  performing  by  any 


IMPOSSIBILITY    OF    PERFORMANCE.  179 

act  or  default  of  the  owner.  See  Story  on  Bailm.,  §  496,  b.  His 
non-performance  in  that  case  not  being  occasioned  by  the  act  or 
default  of  the  other  party,  it  is  difficult  to  see  how,  according  to  our 
rule,  he  could  mantain  the  action.  But  it  is  manifestly  entirely  dif- 
ferent where  the  owner  of  the  property  retains  possession  and  con- 
tracts for  work  to  be  done  upon  it  while  in  his  own  custody.  In 
such  case  there  is  an  implied  obligation  resting  upon  him  to  have  it 
on  hand  and  in  readiness  for  the  labor  to  be  performed  upon  it. 
That  is  the  case  put  by  Wilmot,  J.,  in  Menetone  v.  Athawes,  3 
Burr,  1592,  "of  a  horse  wdiich  a  farrier  is  curing,  and  which  is 
burned  in  the  meanwhile  in  the  owner's  own  stable,"  as  one  in  which 
the  owner  would  undoubtedly  be  liable  for  the  skill  and  care  be- 
stowed. The  work  is  not  completed,  because  the  owner,  whose  duty 
it  is  to  keep  the  article  on  hand  in  order  to  receive  the  labor  and 
skill  upon  it,  fails  to  do  so,  and  is  in  default.  That  is  this  case,  in 
effect.  The  difference  in  the  nature  of  the  property  upon  which  the 
work  was  to  be  performed  does  not  affect  the  principle. 

When  full  performance  is  prevented  by  the  authority  of  the  state, 
the  party  may  recover  for  his  labor  and  materials  up  to  the  time 
the  state  interferes  and  stops  the  work.  Jones  v.  Judd,  4  N.  Y.  411. 
I  lay  no  stress  wdiatever  upon  the  fact  that  the  owner  used  the  build- 
ing more  or  less  while  the  work  was  in  progress,  because  in  this 
state  the  rule  is  well  settled  that  use  and  occupancy  constitute  no 
ground  of  liability  if  the  contract  is  not  performed.  Smith  v.  Brady, 
17  N.  Y,  173.  And  if  the  non-performance  was  occasioned  by  the 
act  or  default  of  the  other  party,  use  and  occupancy  are  of  no 
moment.  Nor  is  it  of  any  consequence,  in  my  judgment,  that  the 
defendant's  testator  kept  the  iron  pipes  which  the  other  party  had 
placed  in  the  building,  and  sold  them  after  the  fire.  They  were 
clearly  his  property,  made  so  by  being  placed  in  his  building  under 
the  contract.  And  his  using  them  or  disposing  of  them  after  the 
destruction  of  the  building  does  not,  in  any  way  that  I  can  per- 
ceive, affect  the  question  of  his  liability. 

I  rest  the  right  of  the  plaintiff'  to  maintain  his  action  distinctly 
upon  the  ground  that  his  assignor  was  prevented  from  performing 
his  contract  by  the  default  of  the  other  party  in  failing  to  keep  on 
hand  and  in  readiness  the  building  in  which  the  work  was  to  be  done, 
and  that  the  other  party  was  clearly  in  default  whether  the  building 
was  destroyed  with  or  without  fault  on  his  part.  If  these  views  are 
correct,  the  action  should  have  been  sustained,  and  the  plaintiff 
allowed  to  recover  for  his  labor  and  materials  according  to  the  con- 
tract, as  far  as  he  had  gone,  deducting  the  amount  paid,  and  per- 
haps any  damages  which  the  owner  may  have  sustained  in  conse- 
quence of  the  non-performance  by  the  time  stipulated  in  the  contract. 
The  judgment  must,  therefore,  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 

All  the  judges  concurred. 

Judgment  reversed,  and  new  trial  ordered,  costs  to  abide  the 
event. 


l80"  BENEFITS    CONFERRED    UNDER    CONTRACT, 


BUTTERFIELD  v.  BYRON. 

153  Mass.  517.— 1891. 

Action  by  Alonzo  M.  Butterfield,  for  the  benefit  of  the  London 
&  Lancashire  Insurance  Company  and  the  Commercial  Union  As- 
surance Company,  against  Napoleon  L.  Byron,  for  damages  for  the 
breach  of  a  contract  for  the  erection  of  a  building  by  defendant  for 
plaintiff  on  the  lands  of  the  latter.  The  contract  provided  that  the 
building  should  be  completed  on  a  certain  day ;  that  plaintiff  should 
pay  defendant  a  certain  amount  therefor ;  75  per  cent,  of  the  amount 
of  work  done  and  materials  furnished  during  the  preceding  month 
to  be  paid  for  on  the  first  of  each  following  month,  and  the  re- 
maining 25  per  cent,  to  be  paid  after  the  entire  completion  of  the 
building.  Certain  amounts  were  paid  defendant,  and  when  the 
building  was  nearly  completed  it  was  destroyed  by  fire.  The  in- 
surance companies  paid  plaintiff  the  amount  of  his  loss,  and  took 
an  assignment  of  all  sums  then  due  and  becoming  due  to  him  from 
defendant  by  reason  of  his  breach  of  the  contract.  After  the  fire, 
defendant  took  away  from  the  premises  certain  building  material 
of  the  value  of  $38,  belonging  to  plaintiff. 

Knowlton,  J. — It  is  well  established  law  that  where  one  contracts 
to  furnish  labor  and  materials,  and  construct  a  chattel,  or  build  a 
house,  on  land  of  another,  he  will  not  ordinarily  be  excused  from 
performance  of  his  contract  by  the  destruction  of  the  chattel  or 
building  without  his  fault  before  the  time  fixed  for  the  delivery  of 
it.  Adams  v.  Nichols,  19  Pick.  275 ;  Wells  v.  Calnan,  107  Mass. 
514;  Dermott  v.  Jones,  2  Wall,  i ;  School-Dist.  v.  Bennett,  27  N.  J. 
Law  513;  Tompkins  v.  Dudley,  25  N.  Y.  272.  It  is  equally  well 
settled  that  when  work  is  to  be  done  under  a  contract  on  a  chattel 
or  building  which  is  not  wholly  the  property  of  the  contractor,  or 
for  which  he  is  not  solely  accountable,  as  where  repairs  are  to  be 
made  on  the  property  of  another,  the  agreement  on  both  sides  is 
upon  the  implied  condition  that  the  chattel  or  building  shall  con- 
tinue in  existence,  and  the  destruction  of  it  without  the  fault  of 
either  of  the  parties  will  excuse  performance  of  the  contract,  and 
leave  no  right  of  recovery  of  damages  in  favor  of  either  against  the 
other.  Taylor  v.  Caldwell,  3  Best  &  S.  826;  Lord  v.  Wheeler,  i 
Gray,  282;  Manufacturing  Co.  v.  Butler,  146  Mass.  82,  15  N.  E. 
Rep.  76;  Bank  v.  Bcal,  141  Mass.  566,  6  N.  E.  Rep.  742,  and  cases 
there  cited  ;  Dexter  v.  Norton,  47  N.  Y.  62 ;  Walker  v.  Tucker,  70 
111.  527.  In  such  cases,  from  the  very  nature  of  the  agreements  as 
applied  to  the  subject-matter,  it  is  manifest  that,  while  nothing  is 
expressly  said  about  it,  the  parties  contemplated  the  continued  ex- 
istence of  that  to  which  the  contract  relates.  The  implied  condition 
is  a  part  of  the  contract  as  if  it  were  written  into  it,  and  by  its 
terms  the  contract  is  not  to  be  performed  if  the  subject-matter  of  it 


IMPOSSIBILITY    OF    PERFORMANCE.  lOl 

is  destroyed,  without  the  fault  of  either  of  the  parties,  before  the 
time  for  complete  performance  has  arrived. 

The  fundamental  question  in  the  present  case  is,  what  is  the  true 
interpretation  of  the  contract  ?  Was  the  house,  while  in  the  process 
of  erection,  to  be  in  the  control  and  at  the  sole  risk  of  the  defendant, 
or  was  the  plaintiff  to  have  a  like  interest  as  the  builder  of  a  part 
of  it?  Was  the  defendant's  undertaking-  to  go  on  and  build  and  de- 
liver such  a  house  as  the  contract  called  for,  even  if  he  should  be 
obliged  again  and  again  to  begin  anew  on  account  of  the  repeated  de- 
struction of  a  partly  completed  building  by  inevitable  accident,  or 
did  his  contract  relate  to  one  building  only,  so  that  it  would  be  at 
an  end  if  the  building,  when  nearly  completed,  should  perish  with- 
out his  fault?  It  is  to  be  noticed  that  his  agreement  was  not  to 
build  a  house,  furnishing  all  the  labor  and  materials  therefor.  His 
contract  was  of  a  very  dift'erent  kind.  The  specifications  are  in- 
corporated into  it,  and  it  appears  that  it  was  an  agreement  to  con- 
tribute certain  labor  and  materials  towards  the  erection  of  a  house 
on  land  of  the  plaintiff  towards  the  erection  of  which  the  plaintiff 
himself  was  to  contribute  other  labor  and  materials,  which  contribu- 
tions would  together  make  a  completed  house.  The  grading,  excavat- 
ing, stone-work,  brick-work,  painting  and  plumbing-  were  to  be  done 
by  the  plaintiff.  Immediately  before  the  fire,  when  the  house  was 
nearly  completed,  the  defendant's  contract,  so  far  as  it  remained  un- 
performed, was  to  finish  a  house  on  the  plaintiff's  land,  which  had 
been  constructed  from  materials  and  by  labor  furnished  in  part  by 
the  plaintiff  and  in  part  by  himself.  He  was  no  more  responsible 
that  the  house  should  continue  in  existence  than  the  plaintiff  was. 
Looking  at  the  situation  of  the  parties  at  that  time,  it  was  like  a  con- 
tract to  make  repairs  on  the  house  of  another.  His  undertaking 
and  duty  to  go  on  and  finish  the  work  was  upon  an  implied  condi- 
tion that  the  house,  the  product  of  their  joint  contributions,  should 
remain  in  existence.  The  destruction  of  it  by  fire  discharged  him 
from  his  contract.  The  fact  that  the  house  was  not  in  existence 
when  the  contract  was  made  is  immaterial.  Howell  v.  Coupland, 
I  Q.  B.  Div.  258.  It  seems  very  clear  that  after  the  building  was 
burned,  and  just  before  the  day  fixed  for  the  completion  of  the 
contract,  the  defendant  could  not  have  compelled  the  plaintiff  to  do 
the  grading,  excavating,  stone-work,  brick-work,  painting  and 
plumbing  for  another  house  of  the  same  kind.  The  plaintiff  might 
have  answered :  *T  do  not  desire  to  build  another  house,  which  can- 
not be  completed  until  long  after  the  date  at  which  I  wished  to  use 
my  house.  My  contract  related  to  one  house.  Since  that  has  been 
destroyed  without  my  fault,  I  am  under  no  further  obligation." 
If  the  plaintiff  could  successfully  have  made  this  answer  to  a  de- 
mand by  the  defendant  that  he  should  do  his  part  toward  the  erec- 
tion of  a  second  building,  then  certainly  the  defendant  can  prevail 
on  a  similar  answer  in  the  present  suit.  In  other  words,  looking 
at  the  contract  from  the  plaintiff's  position,  it  seems  manifest  that 
he  did  not  agree  to  furnish  the  work  and  materials  required  of  him 


l82  BENEFITS    CONFERRED    UNDER    CONTRACT. 

by  the  specifications  for  more  than  one  house,  and,  if  that  was  de- 
stroyed by  inevitable  accident  just  before  its  completion,  he  was  not 
bound  to  build  another,  or  to  do  anything-  further  under  his  contract. 
If  the  plaintiff  was  not  obliged  to  make  his  contribution  of  work  and 
materials  toward  the  building  of  a  second  house,  neither  was  the 
defendant.  The  agreement  of  each  to  complete  the  performance  of 
the  contract,  after  a  building,  the  product  of  their  joint  contributions, 
had  been  partly  erected,  was  on  an  implied  condition  that  the  build- 
ing should  continue  in  existence.  Neither  can  recover  anything  of 
the  other  under  the  contract ;  for  neither  has  performed  the  con- 
tract so  that  its  stipulations  can  be  availed  of.  The  case  of  Cook 
V.  McCabe,  53  Wis.  250,  10  N.  W.  Rep.  507,  was  very  similar  in 
its  facts  to  the  one  at  bar,  and  identical  with  it  in  principle.  There 
the  court,  in  an  elaborate  opinion,  after  a  full  consideration  of  the 
authorities,  held  that  the  contractor  could  recover  of  the  owner  a 
pro  rata  share  of  the  contract  price  for  the  work  performed  and  the 
materials  furnished  before  the  fire.  Clark  v.  Franklin,  7  Leigh  i, 
is  of  similar  purport. 

What  are  the  rights  of  the  parties  in  regard  to  what  has  been 
done  in  part  performance  of  a  contract  in  which  there  is  an  implied 
condition  that  the  subject  to  which  the  contract  relates  shall  continue 
in  existence,  and  where  the  contemplated  work  cannot  be  completed 
by  reason  of  the  destruction  of  the  property  without  fault  of  either 
of  the  parties,  is  in  dispute,  upon  the  authorities.  The  decisions  in 
England  differ  from  those  of  Massachusetts  and  of  most  of  the 
other  states  of  this  country.  There  the  general  rule,  stated  broadly, 
seems  to  be  that  the  loss  must  remain  where  it  first  falls,  and  that 
neither  of  the  parties  can  recover  of  the  other  for  anything  done 
under  the  contract.  In  England,  on  authority,  and  upon  original 
grounds  not  very  satisfactory  to  the  judges  of  recent  times,  it  is 
held  that  freight  advanced  for  the  transportation  of  goods  subse- 
quently lost  by  the  perils  of  the  sea  cannot  be  recovered  back.  Alli- 
son v.  Insurance  Co.,  L.  R.  i  App.  209,  226;  Byrne  v.  Schiller,  L.  R. 
6  Exch.  319.  In  the  United  States  and  in  continental  Europe  the  rule 
is  different.  Griggs  v.  Austin,  3  Pick.  20,  22 ;  Brown  v.  Harris, 
2  Gray  359.  In  England  it  is  held  that  one  who  has  partly  per- 
formed a  contract  on  property  of  another,  which  is  destroyed  with- 
out the  fault  of  either  party,  can  recover  nothing;  and,  on  the 
other  hand,  that  one  who  has  advanced  payments  on  account  of  labor 
and  materials  furnished  under  such  circumstances  cannot  recover 
back  the  money.  Appleby  v.  Meyers,  L.  R.  2  C.  P.  651 ;  Navigation 
Co.  V.  Rcnnie,  L.  R.  10  C.  P.  271.  One  who  has  advanced  money 
for  the  instruction  of  his  son  in  a  trade  cannot  recover  it  back  if  he 
who  received  it  dies  without  giving-  the  instruction.  Whincup  v. 
Hughes,  L.  R.  6  C.  P.  78.  But  where  one  dies,  and  leaves  unper- 
formed a  contract  which  is  entire,  his  administrator  may  recover 
any  instalments  which  were  due  on  it  before  his  death.  Stubbs  v. 
Railway  Co.,  L.  R.  2  Exch.  311.  In  this  country,  where  one  is  to 
make  repairs  on  the  house  of  another  under  a  special  contract,  or  is 


IMPOSSIBILITY    OF    PERFORMANCE.  183 

to  furnish  a  part  of  the  work  and  materials  used  in  the  erection  of 
a  house,  and  his  contract  becomes  impossible  of  performance  on 
account  of  the  destruction  of  the  house,  the  rule  is  uniform,  so  far 
as  the  authorities  have  come  to  our  attention,  that  he  may  recover 
for  what  he  has  done  or  furnished.  In  Cleary  v.  Sohier,  120  Mass. 
210,  the  plaintiff  made  a  contract  to  lath  and  plaster  a  certain  build- 
ing for  forty  cents  per  square  yard.  The  building  was  destroyed 
by  a  fire  which  was  an  unavoidable  casualty.  The  plaintiff  had 
lathed  the  building,  and  put  on  the  first  coat  of  plaster,  and  would 
have  put  on  the  second  coat,  according  to  his  contract,  if  the  build- 
ing had  not  been  burned.  He  sued  on  an  implied  assumpsit  for  work 
done  and  materials  found.  It  was  agreed  that,  if  he  was  entitled 
to  recover  anything,  the  judgment  should  be  for  the  price  charged. 
It  was  held  that  he  could  recover.  See,  also,  Lord  v,  Wheeler,  i 
Gray  282;  Wells  v.  Calnan,  107  Mass.  514,  517.  In  Cook  v.  Mc- 
Cabe,  nbi  supra,  the  plaintiff  recovered  pro  rata  under  his  contract ; 
that  is,  as  we  understand,  he  recovered  on  an  implied  assumpsit  at 
the  contract  rate.  In  Hollis  v.  Chapman,  36  Tex,  i,  and  in  Clark 
v.  Franklin,  7  Leigh  i,  the  recovery  was  a  proportional  part  of  the 
contract  price.  To  the  same  effect  are  Schwartz  v.  Saunders,  46  111, 
18;  Rawson  v.  Clark,  70  111.  656;  and  Clark  v,  Busse,  82  111.  515. 
The  same  principle  is  applied  to  different  facts  in  Jones  v.  Judd,  4 
N.  Y.  411,  and  in  Hargrave  v.  Conroy,  19  N,  J.  Eq.  281,  If  the 
owner,  in  such  a  case,  has  paid  in  advance,  he  may  recover  back  his 
money,  or  so  much  of  it  as  was  an  overpayment.  The  principle 
seems  to  be  that  when,  under  an  implied  condition  of  the  contract, 
the  parties  are  to  be  excused  from  performance  if  a  certain  event 
happens,  and  by  reason  of  the  happening  of  the  event  it  becomes  im- 
possible to  do  that  which  was  contemplated  by  the  contract,  there 
is  an  implied  assumpsit  for  what  has  properly  been  done  by  either 
of  them ;  the  law  dealing  with  it  as  done  at  the  request  of  the  other, 
and  creating  a  liability  to  pay  for  it,  its  value  to  be  determined  by 
the  price  stipulated  in  the  contract,  or  in  some  other  way  if  the 
contract  price  cannot  be  made  applicable.  Where  there  is  a  bilateral 
contract  for  an  entire  consideration  moving  from  each  party,  and 
the  contract  cannot  be  performed,  it  may  be  held  that  the  consider- 
ation on  each  side  is  the  performance  of  the  contract  by  the  other, 
and  that  a  failure  completely  to  perform  it  is  a  failure  of  the  entire 
consideration,  leaving  each  party,  if  there  has  been  no  breach  or 
fault  on  either  side,  to  his  implied  assumpsit  for  what  he  has  done. 

The  only  question  that  remains  in  the  present  case  is  one  of  plead- 
ing. The  defendant  is  entitled  to  be  compensated  at  the  contract 
price  for  all  he  did  before  the  fire.  The  plaintiff  is  to  be  allowed 
for  all  his  payments.  If  the  payments  are  to  be  treated  merely  as 
advancements  on  account  of  a  single  entire  consideration,  namely,  the 
completion  of  the  whole  work,  the  work  not  having  been  completed, 
they  may  be  sued  for  in  this  action,  and  the  defendant's  only  rem- 
edy available  in  this  suit  is  by  a  declaration  in  set-oft'.  If,  on  the 
other  hand,  each  instalment  due  was  a  separate  consideration  for  the 


184  BENEFITS    CONFERRED    UNDER    CONTRACT. 

payment  made  at  the  time,  then,  as  to  those  instahnents  and  the  pay- 
ments of  them,  the  contract  is  completely  executed,  and  the  plaintiff 
can  recover  nothing,  and  the  implied  assumpsit  in  favor  of  the  de- 
fendant can  be  only  for  the  part  which  remains  unpaid.  We  are  of 
opinion  that  the  consideration  which  the  defendant  was  to  receive  was 
an  entire  sum  for  the  performance  of  the  contract,  and  that  the  pay- 
ments made  were  merely  advances  on  account  of  it,  and  that,  on  his 
failure  to  perform  the  contract,  there  was  a  failure  of  consideration 
which  gave  the  plaintiff  a  right  to  sue  for  money  had  and  received, 
and  that  the  like  failure  of  consideration  on  the  other  side  gave  the 
defendant  a  right  to  sue  on  an  implied  assumpsit  for  work  done  and 
materials  found. 

The  $38  due  from  the  defendant  to  the  plaintiff  cannot  be  recov- 
ered in  this  action.  The  report  and  the  pleadings  show  that  the  suit 
was  brought,  under  an  assignment  for  the  benefit  of  the  insurers, 
to  recover  damages  for  a  breach  of  the  contract  for  the  erection  of 
the  building,  and  not  to  recover  the  value  of  the  shingles  or  weights 
carried  away  from  the  ruins.  According  to  the  terms  of  the  report, 
the  ruling  being  wrong,  such  order  may  be  made  as  this  court  shall 
direct.  A  majority  of  the  court  are  of  opinion  that  the  verdict 
should  be  set  aside,  and  the  defendant  be  given  leave  to  file  a  declara- 
tion in  set-off,  if  he  is  so  advised,  on  such  terms  as  the  superior 
court  deems  reasonable. 

Verdict  set  aside. ^ 

^  In  Lord  v.  Wheeler,  i  Gray  (Mass.)  282  (1854),  the  action  was  for  labor 
and  materials  in  making  repairs  upon  buildings  which,  before  the  completion 
of  the  repairs,  were  destroyed  by  fire.  The  court  says :  "The  precise  ground 
on  which  the  plaintiff  can  recover  in  this  case  is,  that,  when  the  repairs  upon 
the  house  were  substantially  done,  and  before  the  fire,  the  defendant  by  his 
tenant  entered  into  and  occupied  it,  and  so  used  and  enjoyed  the  labor  and 
materials  of  the  plaintiff;  and  that  such  use  and  enjoyment  were  a  severance 
of  the  contract,  and  an  acceptance  pro  fanto  by  the  defendant." 

In  Angus  and  another  v.  Scully,  176  Mass.  357  (1900),  plaintiffs  contracted 
to  move  three  buildings  for  the  sum  of  $840.  They  moved  one  building,  and 
had  moved  the  second  one  about  half  the  distance  when  the  latter  was  de- 
stroyed by  fire.  Thereupon,  with  consent  of  defendant,  no  further  moving 
was  done  under  the  contract.  The  court  said :  "With  particular  reference 
to  the  circumstances  of  this  case,  the  rule  may  be  said  to  be  that  where  one 
is  to  make  repairs  or  do  any  other  work  on  the  house  of  another  under  a 
special  contract,  and  his  contract  becomes  impossible  of  performance  on  ac- 
count of  the  destruction  of  the  house  without  any  fault  on  his  part,  then  he 
may  recover  for  what  he  has  done.  This  case  comes  clearly  within  this  rule. 
Lord  v.  Wheeler,  i  Gray  282.  Butterfield  v.  Byron,  ubi  supra,  and  cases  there- 
in cited."    Accord,  Young  v.  City  of  Chicopee,  72  N.  E.  63  (Mass.  1904). 


® 


IMPOSSIBILITY   OF    PERFORMANCE. 

WOLFE,  Executor,  v.  HOWES. 
20  N.  Y.  197. — 1859. 

The  complaint  contained  the  common  counts  only  for  work,  labor 
and  services  done  by  Nicholas  Vaclie,  the  testator,  for  the  defend- 
ants. The  defendants  denied  the  facts  averred  in  the  complaint,  and 
set  up  as  a  separate  defense  that  the  work  was  done  under  a  special 
contract  not  performed  by  Vache  in  his  lifetime,  and  claimed  dam- 
ages for  the  breach  of  the  contract  on  his  part.  On  the  ist  of  May, 
1852,  the  defendants  and  testator  entered  into  a  contract  in  writing- 
as  follows : 

"Memorandum  of  an  agreement  made  this  day.  Howes,  Scofield 
&  Co.  (defendants),  of  the  first  part,  and  Nicholas  Vache  of  the 
second  part,  Witnesseth,  That  for  and  in  consideration  of  $i  to  me 
in  hand  paid,  and  receipt  whereof  I  do  acknowledge,  do  agree  on 
my  part  to  do  all  the  pot-room  work  for  said  parties  of  the  first 
part,  in  a  good  and  workmanlike  manner,  for  one  year  from  the 
date  of  this  contract,  at  the  price  of  $40  per  month,  $10  of  w^iich  is 
to  be  paid  me  monthly.  Dunbarton,  May  i,  1852.  If  extra  help  is 
needed,  we  agree  to  furnish  it. 

(Signed)     Nicholas  Vache." 

The  trial  was  before  a  referee,  who  found  the  following  facts : 
The  plaintiff's  testator  entered  upon  the  performance  of  the  contract, 
and  continued  to  fulfill  it  in  all  respects  according  to  the  terms 
thereof,  in  a  good  and  workmanlike  manner  from  the  ist  day  of 
May,  1852,  to  the  7th  day  of  December,  following,  when  Vache  be- 
came sick  and  unwell,  and  so  continued  for  a  long  time,  and  at 
length  died.  By  reason  of  his  said  sickness,  and  without  fault  on 
his  part,  he  became  and  was  incapable  of  further  performance  of 
his  said  contract. 

He  held  as  a  matter  of  law,  that  by  reason  of  his  sickness  and 
death,  Vache  was  released  and  discharged  from  the  further  per- 
formance of  his  contract,  and  his  executor  was  entitled  to  recover 
a  reasonable  compensation  for  the  services  of  his  testator.  That 
such  reasonable  compensation  was  the  sum  of  $40  per  month,  for 
the  time  of  the  testator's  service ;  and  after  deducting  certain  pay- 
ments made  to  him  from  time  to  time,  there  was  a  balance  due  of 
$159.28,  for  which  he  ordered  judgment  with  costs. 

Allen,  J. — There  can  be  little  doubt,  I  think,  that  the  contract 
with  Vache  contemplated  his  personal  services.  This  is  evident, 
both  from  the  nature  of  the  business  and  the  amount  of  compen- 
sation agreed  to  be  paid  him.  It  is  also  manifest  from  the  evidence 
on  both  sides.  The  business  of  pot-making  required  skill  and  ex- 
perience. It  was  an  art  to  be  acquired  after  much  study  and  labor, 
and  which  Vache  seemed  to  have  accomplished.  The  execution  of 
the  work  required  his  constant  and  personal  supervision  and  labor. 
No  common  laborer  could  have  supplied  his  place,  and  hence  the 


l86  BENEFITS    CONFERRED    UNDER    CONTRACT. 

amount  of  his  wages  was  largely  increased  beyond  that  of  such  a 
hand.  The  extra  help  mentioned  in  the  contract  had  reference  to 
the  breaking  away  of  the  flattening,  so  called,  and  to  its  repair,  and 
nothing  else.  The  whole  testimony  shows  this,  as  well  as  that  the 
personal  services  of  Vache  were  contracted  for.  The  referee  there- 
fore well  found  and  the  court  below  well  decided  that  such  were  the 
terms  of  the  contract. 

2.  The  question  is  then  presented  whether  the  executor  of  a  me- 
chanic, who  has  contracted  to  work  for  a  definite  period,  and  who 
enters  upon  his  labor  under  the  contract,  and  continued  in  its  faith- 
ful performance  for  a  portion  of  the  time,  until  prevented  by  sick- 
ness and  death,  and  without  any  fault  on  his  part,  from  its  final 
completion,  can  recover  for  the  work  and  services  thus  performed 
by  his  testator.  The  broad  ground  is  taken  on  the  part  of  the  de- 
fendants' counsel,  that  no  recovery  can  be  had  under  such  circum- 
stances ;  that  full  performance  was  a  condition  precedent  to  the 
right  of  recovery,  the  agreement  being  general  and  absolute  in  its 
terms,  and  not  providing  for  the  contingency  of  sickness  or  death. 

It  has  undoubtedly  been  long  settled  as  a  general  principle,  both 
in  England  and  in  this  as  well  as  in  most  the  other  states,  that 
where  the  contract  is  entire,  nothing  but  the  default  of  the  defend- 
ants will  excuse  performance.  It  will  be  found,  however,  on  an  ex- 
amination of  the  leading  cases  in  our  own  courts,  that  the  failure  to 
perform  w-as  owing  to  the  fault  or  negligence  of  the  party  seeking 
to  recover.  McMillan  v.  Vanderlip,  12  John.  165 ;  Reab  v.  Moor, 
19  John.  337;  Jennings  v.  Camp,  13  John.  94;  id.  390;  Sickles  v. 
Pattison,  14  Wend.  257,  8  Cow.  63,  and  various  other  cases.  It  is 
believed  that  not  a  single  case  can  be  found  where  the  rule  is  laid 
down  with  such  strictness  and  severity  as  the  defendants'  counsel 
asks  for  in  the  present  case. 

Some  of  the  English  cases  do  indeed  rather  intimate  such  a  doc- 
trine (Cutler  V.  Powell,  6  Term.  R.  320;  8  id.  267;  Appleby  v. 
Dods,  8  East  300;  Hulle  v.  Heightman,  2  id.  145,  and  some  others). 
These  cases  are,  however,  capable  of  the  same  reasonable  construc- 
tion which  the  law  confers  upon  all  contracts.  That  of  Cutler  v. 
Powell  is  distinguishable  in  this,  that  by  the  peculiar  wording  of 
the  contract  it  was  converted  into  a  wagering  agreement,  by  which 
the  party,  in  consideration  of  an  unusually  high  rate  of  wages,  un- 
dertook to  insure  his  own  life  and  to  render  at  all  hazards  his  per- 
sonal services  during  the  voyage,  before  the  completion  of  which 
he  died. 

The  great  principle  upon  which  the  adjudged  cases  in  all  the 
courts  is  based,  is  the  question,  as  stated  in  McMillan  v.  Vanderlip, 
already  cited.  What  was  the  real  intention  of  the  parties?  The  law 
gives  a  reasonable  construction  to  all  contracts.  For  instance,  in 
the  present  case,  did  the  parties  intend  that  the  contract  should  be 
binfling  upon  the  plaintiff's  testator  in  case  of  unavoidable  sickness 
or  death  ;  or  did  they  intend,  and  is  it  to  be  implied,  that  each  should 
perform,  as  to  the  other,  according  to  the  terms  of  the  contract, 


IMPOSSIBILITY   OF    PERFORMANCE.  16/ 

Deo  volente?  It  appears  that  a  fair  and  legal  interpretation  would 
answer  this  question  in  the  affirmative,  and  that  such  a  provision 
must  be  understood  and  written  in  the  contract.  Nor  is  this  prin- 
ciple wanting  sanction  either  by  elementary  writers  or  adjudged 
cases.  "Where  the  performance  of  a  condition  is  prevented  by  the 
act  of  God,"  "it  is  excused."  Cruise's  Digest,  Condition,  41,  43;  3 
Kent  Com.  471  ;  2  id.  509;  8  Bing.  231.  In  Mounsey  v.  Drake,  10 
John,  2y,  2C),  the  court  say,  "Perfon'nance  must  be  shown,  unless 
prevented  by  the  act  of  God,  or  of  the  law."  i  Shep.  Touchstone 
180;  Gilbert  on  Covenants  472;  People  v.  Manning,  8  Cow.  297; 
People  v,  Bartlett,  3  Hill  570;  12  Wend.  590;  Chit,  on  Con.  631; 
I  Parsons  on  Con.  524,  and  note;  11  Verm.  562;  11  Mete.  440.- 

There  is  good  reason  for  the  distinction  which  seems  to  obtain 
in  all  the  cases,  between  the  case  of  a  negligent  or  wilful  violation 
of  a  contract  and  that  where  one  is  prevented  by  the  act  of  God.  In 
the  one  case,  the  application  of  the  rule  operates  as  a  punishment  to 
the  person  wantonly  guilty  of  the  breach,  and  tends  to  preserve  the 
contract  inviolable ;  while  in  the  other,  its  exception  is  calculated  to 
protect  the  rights  of  the  unfortunate  and  honest  man  who  is  provi- 
dentially and  without  fault  on  his  part  prevented  from  a  full  per- 
formance. 

There  is  another  reason  for  relaxing  the  rule,  which  is  applicable 
to  the  case  we  are  now  considering.  It  is  well  set  forth  in  Story  on 
Bailments  (§  36,  and  notes),  vvhere  that  learned  jurist,  after  con- 
sidering the  great  number  of  cases  on  this  subject  in  the  various 
courts  of  England  and  this  country,  and  well  observing  that  they 
are  not  at  all  times  in  harmony,  remarks  that  the  true  rule  may  be 
considered  to  be,  "that  where  the  contract  is  for  personal  services 
which  none  but  the  promisor  can  perform,  there  inevitable  accident 
or  the  act  of  God  will  excuse  the  non-performance,  and  enable  the 
party  to  recover  upon  a  quantum  meruit.  But  where  the  thing  to 
be  done  or  work  to  be  performed  may  be  done  by  another  person, 
then  all  accidents  are  at  the  risk  of  the  promisor."  In  the  present 
case  the  finding  shows,  and  I  have  already  remarked,  justly,  that  the 
contract  was  personal,  and  that  the  executor  could  not  have  em- 
ployed a  third  person  to  execute  the  contract  on  the  part  of  his  tes- 
tator Vache. 

But  without  pressing  this  point  further,  it  is  sufficient  to  say  that 
it  was  virtually  decided  against  the  defendants  by  this  court  in  the 
case  of  Jones  v.  Judd,  4  Comst.  411.  It  was  there  decided  that 
when,  by  the  terms  of  the  contract  for  work  and  labor,  the  full  price 
is  not  to  be  paid  until  the  completion  of  the  work,  and  that  becomes 
impossible  by  the  act  of  the  law,  the  contractor  is  entitled  to  recover 
for  the  amount  of  his  labor.  In  that  case  the  work  was  stopped  by 
the  state  officers  in  obedience  to  an  act  of  the  legislature  suspend- 
ing the  work ;  and  the  court  held  that  as  the  contractor  was  without 
fault,  he  was  entitled  to  recover.  The  case  in  10  John,  27,  before 
cited,  was  referred  to  and  approved  of  as  authority  in  favor  of  the 
position ;  and  see  Beebe  v.  Johnson,  19  Wend.  502. 


l88  BENEFITS    CONFERRED    UNDER    CONTRACT. 

The  conclusion  then  is,  that  where  the  performance  of  work  and 
labor  is  a  condition  precedent  to  entitle  the  party  to  recover,  a  ful- 
filment must  be  shown ;  yet  that  where  performance  is  prevented  or 
rendered  impossible  by  the  sickness  or  death  of  the  party,  a  re- 
covery may  be  had  for  the  labor  actually  done.  This  is  not  out  of 
harmony  with  principle  or  adjudged  cases,  and  is  certainly  in  har- 
mony with  the  rules  of  common  honesty  and  strict  justice.  These 
views  dispose  of  the  main  questions  in  the  case.  It  is  necessary  to 
notice  one  or  two  of  minor  importance. 

It  is  insisted  that  if  sickness  were  an  excuse  for  the  non-perform- 
ance of  the  contract  on  the  part  of  Vache,  that  such  excuse  should 
have'  been  alleged  in  the  complaint,  and  this  not  having  been  done, 
that  the  plaintiff  is  not  entitled  to  recover.  It  is  true  that  the  plain- 
tiff might  have  set  up  the  agreement  and  the  excuse  for  its  non-per- 
formance, and  entitled  himself  to  recover  upon  such  a  pleading. 
But  the  complaint  proceeds  upon  a  quantum  meruit;  and  upon  show- 
ing the  work  and  labor  of  Vache  the  plaintiff  entitled  himself  to  re- 
cover. The  defendants  set  up  the  special  agreement  as  matter  of 
defense,  and  the  plaintiff's  excuse  was  properly  enough  matter  of 
reply.  The  contract  w^as  in  fact  discharged  by  the  act  of  God,  and 
its  chief  consequence  was  to  measure  the  amount  of  the  plaintiff's 
damages,  or  to  regulate  the  compen  ;ation  to  which  the  plaintiff  was 
entitled,  though  his  remedy  was  upon  a  quantum  meruit.  So  say 
some  of  tne  cases  already  cited. 

Again,  it  is  said  that  if  the  plaintiff  was  entitled  to  recover  any- 
thing, it  could  be  only  $io  a  month,  and  that  the  defendants'  set-off 
having  been  found  by  the  referee  to  amount  to  more  than  that,  the 
defendants  were  entitled  to  judgment.  This  objection  is  not  tena- 
ble. The  compensation  was  to  be  at  the  rate  of  $40  per  month ;  $10 
(a  part)  of  which  was  to  be  paid  monthly.  This  was  upon  the  sup- 
position that  the  contract  was  to  be  performed  for  the  whole  time. 
This,  however,  having  been  rendered  impossible,  the  plaintiff  was 
entitled  to  recover,  if  anything,  the  full  value  of  the  services  of  the 
testator,  not  exceeding  the  rate  of  compensation  secured  by  the 
terms  of  the  contract. 

It  is  further  urged  that  the  referee  erred  in  not  allowing  de- 
fendants' damages  accruing  to  them  after  Vache  was  sick  and  be- 
fore he  quit.  That  was  a  question  of  fact  entirely  for  the  referee. 
He  found  that  the  plaintiff  did  his  work  well  and  skillfully,  down  to 
the  time  of  his  sickness ;  he  allowed  and  deducted  the  whole  amount 
of  set-off  proved  by  defendants ;  and  he  does  not  find  that  the  de- 
fendants sustained  any  damages  by  reason  of  any  defect  in  Vache's 
work  down  to  the  time  of  his  quitting,  in  December,  1852.  With 
these  questions  of  fact  we  cannot  interfere.  The  court  below  sanc- 
tioned the  finding.  I  think  they  were  fully  warranted  in  so  doing. 
At  all  events,  we  are  not  at  liberty  to  interfere. 

The  judgment  must  be  affirmed. 

Johnson,  Cti.  J.,  concurred,  observing  that  it  was  material  that 
the  defendants  had  received  actual  benefit  from  the  services  of  the 


IMPOSSIBILITY    OF    PERFORMANCE.  I89 

plaintiff's  testator,  and  that  quite  a  different  question  would  be  pre- 
sented by  a  case  where  the  services  actually  rendered  should  prove 
valueless ;  as  e.  g.,  if  one  should  be  retained  to  compose  any  original 
literary  work,  and  having  faithfully  employed  himself  in  prepara- 
tion, should  die  without  having  completed  any  work  of  value  to  the 
employer.  Comstock,  J.,  and  other  judges  concurred  in  this  quali- 
fication. Judgment  affirmed.^ 


HUBBARD  V.  BELDEN. 

27  Vt.  645.— 1S55. 

Redfield,  Ch.  J. — This  court  having  decided  in  Fenton  v.  Clark, 
II  Vt.  [557],  that  sickness  will  so  far  release  a  party  to  a  contract  to 
perform  labor  for  an  entire  term  from  the  performance  of  his  con- 
tract, as  to  enable  him  to  maintain  an  action  to  recover  for  part  per- 
formance, it  only  seems  to  be  a  question  of  the  character  of  the  indis- 
position, as  to  severity  and  length  of  time.  The  sickness  in  the  pres- 
ent case  seems  to  have  been  sufficiently  severe,  as  it  wholly  incapaci- 
tated the  plaintiff  from  labor ;  and  as  it  continued  unabated  for  one 
week,  and  partially  for  two  weeks,  it  would  seem  that  the  plaintiff 
was  fully  justified  in  regarding  it  as  likely  to  continue  as  long,  as 
it  did,  in  fact. 

We  think  it  must  be  regarded  as  pretty  clear  that  the  defendant 
would  be  released  from  any  obligation  to  wait  two  weeks  for  his 
hired  man  to  recover,  upon  the  uncertainty  of  his  then  recovering, 
before  he  employed  other  help.  And  if  so,  equally  should  the  plain- 
tiff be  at  liberty  to  leave  for  the  time,  and  he  would  not  be  bound 
to  return  unless  the  defendant  was  bound  to  receive  him,  which  he 
would  not,  under  the  circumstances  of  this  case.  He  would  then 
be  entitled  to  recover  what  his  part  performance  of  his  contract  had 
benefited  the  defendant.  This  is  now  the  settled  rule  in  all  entire 
contracts,  where  a  recovery  is  allowed  on  the  ground  of  apportion- 
ment, and  a  failure  to  perform  strictly  according  to  the  terms  of  the 
contract.    This  was  the  basis  of  the  recovery  in  the  county  court. 

Judgment  affirmed. 

*  Accord,  Fenton  v.  Clark,  11  Vt.  557  (1839).  In  Lakeman  v.  Pollard,  43 
Me.  463  (1857),  plaintiff  quit  his  employment  "by  reason  of  the  alarm  and 
danger"  caused  by  the  prevalence  of  cholera  in  the  vicinity  of  the  mills  where 
he  was  under  contract  to  work  for  the  season,  and  he  was  allowed  to  recover 
upon  a  quantum  meruit  for  the  work  he  had  done. 

It  is  held  in  Patrick  v.  Putnam,  27  Vt.  759  (1S55),  that:  "A  person  con- 
tracting to  labor  for  a  definite  term  and  who  fails  to  fulfill  his  contract  by 
reason  of  sickness  is  liable  to  have  the  amount  of  his  recovery  reduced,  by 
the  damages  sustained  by  the  employer  in  consequence  of  his  not  being  able 
to  complete  the  full  term  of  service." 


190  BENEFITS    CONFERRED    UNDER    CONTRACT. 

WELCH  V.  HICKS. 

6  Cow.  (N.  Y.)  504.— 1826. 

Assumpsit  for  freight  of  the  ship  Romeo,  from  Petersburg  in 
Russia,  to  Princetown  in  Massachusetts.  The  declaration  stated  that 
the  plaintiff,  the  owner  of  the  ship,  received  goods  on  board  at  St. 
Petersburg,  consigned  to  the  defendant  at  New  York ;  but  the  ship 
was  forced  by  the  violence  of  the  winds  and  tempests,  to  put  into 
Princetown,  on  her  voyage  to  New  York,  where  the'defendant  elected 
to  receive  the  goods,  and  did  receive  them,  and  release  the  plaintiff 
from  his  obligation  to  transport  them  to  New  York.  It  contained 
counts  adapted  both  to  full  and  pro  rata  freight. 

The  judge  charged,  that  if  a  vessel,  laden  with  goods  on  freight, 
meets  with  a  disaster  in  the  course  of  her  voyage,  and  puts  into  an 
intermediate  port ;  and  the  owner  of  the  goods  receives  them  there, 
he  becomes  liable  to  pay  a  pro  rata  freight,  and  that  the  defendant 
was  liable  in  this  case  to  pay  pro  rata  freight,  unless  he  could  show 
an  express  and  positive  agreement,  on  the  part  of  the  master,  to 
waive  and  discharge  all  claim  to  freight.  That  the  law  necessarily 
implied  an  agreement  to  pay  freight,  from  the  act  of  receiving  the 
goods ;  and  this,  notwithstanding  the  ability  of  the  master  to  repair 
in  a  reasonable  time,  or  send  on  the  goods  in  other  vessels,  and  his 
refusal,  on  request,  to  do  either.  That  the  remedy  of  the  owner  of 
the  goods  would  be  to  abandon  the  goods,  and  bring  his  action  for 
damages  against  the  master  or  owner  of  the  vessel ;  and  in  every 
case,  under  any  circumstances,  the  owner  of  the  goods  becomes 
liable  at  all  events,  by  the  act  of  accepting  them  alone,  at  the  port 
of  distress,  to  pay  a  pro  rata  freight ;  unless  he  can  show  an  express 
and  positive  agreement  to  the  contrary.  He  left  it  to  the  jury  to 
say,  whether  the  proof  established  such  an  agreement. 

Verdict  for  the  plaintiff  for  $2,526.67  damages. 

Curia,  per  Sutherland,  J. — This  court  has  repeatedly  held,  that 
freight  pro  rata  itincris  is  due  where  a  ship,  in  consequence  of  the 
perils  of  the  sea,  without  any  fault  of  the  master,  goes  into  a  port 
short  of  her  destination ;  and  is  unable  to  prosecute  the  voyage ; 
and  the  goods  are  received  by  the  owner  at  such  intermediate  port. 
2  Caines  21 ;  i  John.  27;  2  John.  323,  336;  9  John.  19,  20,  186.  This 
principle  has  been  adopted  from  fhe  decisions  of  the  English  courts, 
commencing  with  Luke  v.  Lyde,  2  Burr,  882,  and  continued,  with- 
out any  essential  conflict  or  contrariety,  down  to  the  present  time. 
7  T.  R.  381  ;  5  East  316;  10  East  393,  526;  2  Campb,  466;  3  Bin. 
448;  5  id.  525;  7  Cranch  358;  i  Marsh.  281,  note.  This  general 
principle  is  not  dis])utcd  by  the  defendant's  counsel.  On  the  other 
hand,  it  is  conceded,  that  where  the  master  refuses  to  repair  his 
ship  and  send  on  the  goods,  or  to  procure  other  vessels  for  the  pur- 
pose, and  the  owner  of  the  goods  then  receives  them,  that  this  is 
not  such  an  acceptance  of  the  goods  as  will  entitle  the  ship  owner 


IMPOSSIBILITY    OF    PERFORMANCE.  I9I 

to  a  pro  rata  freight.  It  is  not  a  voluntary  acceptance.  He  does 
not  elect  to  receive  his  goods  at  the  intermediate  port,  and  sell  them 
there,  or  become  his  own  carrier  to  the  port  of  destination.  He  does 
not  assent  to  the  termination  of  the  voyage  at  the  intermediate  port ; 
but  it  having  been  terminated  there  against  his  will,  by  the  refusal 
of  the  master  to  send  on  his  goods  to  the  port  of  destination,  he  does 
not,  by  receiving  them  under  such  circumstances,  in  judgment  of 
law,  promise  to  pay  the  freight  to  the  intermediate  port. 

The  judge,  in  his  charge  to  the  jury,  entirely  excluded  the  ques- 
tion, whether  the  acceptance  of  the  goods  was  voluntary  or  not ; 
and  instructed  them  that  the  fact  of  receiving  the  goods  under  any 
circumstances,  rendered  the  owner  liable  for  a  pro  rata  freight ;  un- 
less he  could  show  an  express  and  positive  agreement  of  tlie  master, 
at  the  time  of  the  delivery  of  the  goods,  to  waive  and  discharge  all 
claim  to  the  freight.  In  this,  I  think,  he  erred.  The  cases  already 
cited,  particularly  those  in  9  John.,  show  that,  in  order  to  raise  an 
implied  assumpsit  in  such  cases,  the  acceptance  must  be  voluntary. 
No  other  rule  would  be  consonant  with  justice  or  equity. 

But  the  master  did  finally  declare  his  election  to  repair  his  ship, 
and  send  on  the  goods ;  and  they  were  agreed  to  be  received  by  the 
defendant's  agent,  after  such  declaration  had  been  made  to  him. 
This  was  at  first  upon  the  express  condition  of  his  giving  an  order 
on  the  defendant  for  the  freight,  but  finally  they  were  delivered  and 
received  without  any  such  condition.  These  circumstances  are 
claimed  to  be  sufficient  to  sustain  the  verdict ;  and  it  is  said,  admit- 
ting the  judge's  charge  to  be  incorrect,  as  it  goes  beyond  the  facts, 
a  new  trial  should  not,  for  that  reason,  be  granted.  Under  the  cir- 
cumstances of  the  case,  the  agent  might  well  have  supposed  that 
there  was  no  bona  Ude  intention  to  repair.  He  swears  that  such  was 
his  opinion  ;  and  that  the  goods  were  finally  delivered  uncondition- 
ally; that  is  (as  I  understand  him),  without  any  order  having  been 
given  for  the  freight. 

I  think  the  judge  should  have  left  it  to  the  jury  to  determine 
whether  the  master  did  intend  to  repair  the  vessel,  and  complete  the 
voyage ;  and  whether  the  acceptance  of  the  goods  by  the  agent  of 
the  defendant  was  voluntary  or  not. 

New  trial  granted. 


ii.    Defendant  in  Default. 

SHEAR  V.  WRIGHT. 

60  Mich.  159. — 1886. 

Assumpsit.    Plaintifif  brings  error. 

Campbell,  C.  J. — Plaintiff  sues  for  a  balance  alleged  to  be  due  on 
the  price  of  a  bull-calf  sold  to  defendant  in  October,  1882.  The 
price  agreed  upon  is  alleged  by  plaintiff  to  have  been  fifteen  dollars, 


ig2  BENEFITS  CONFERRED  UNDER  CONTRACT. 

and  by  defendant  to  have  been  ten  dollars.  Six  dollars  is  admitted 
to  have  been  paid,  five  at  first,  and  one  dollar  in  subsequent  dealings. 
Four  dollars  according  to  defendant,  and  nine  dollars  according  to 
plaintiff,  remained  unpaid.  This  sum  of  four  dollars,  as  both  agree, 
was  to  be  paid  by  services  for  breeding  purposes  of  a  certain  bull 
then  mentioned  and  owned  by  defendant,  or,  at  plaintiff's  election, 
of  the  calf  when  grown.  Without  any  fault  of  defendant,  this  per- 
formance was  made  impossible  by  the  death  of  the  calf  and  an  in- 
jury to  the  bull. 

So  far  as  the  amount  of  the  original  price  is  concerned,  the  par- 
ties are  in  their  oaths  directly  at  variance.  There  was  testimony 
tending  to  show  that  defendant  knew  plaintiff  supposed  fifteen  dol- 
lars to  be  the  price  agreed  on.  It  is  also  found  that  on  a  dispute 
arising  between  them,  plaintiff  proposed  to  defendant  if  he  could  go 
before  a  magistrate  and  make  affidavit  that  he  was  to  pay  only  five 
dollars  in  cash  instead  of  ten,  he  would  forgive  him  the  other  five 
dollars,  to  which  defendant  assented,  and  offered  to  go,  but  did  not 
do  so,  because  plaintiff  did  not  start  to  go  with  him.  The  court  be- 
low having  found  that  ten  and  not  fifteen  dollars  was  the  agreed 
price,  we  cannot  review  that  finding  of  fact,  and  it  is  of  no  conse- 
quence what  effect  this  testimony  might  have  had  on  the  mind  of  any 
one  else. 

The  only  serious  question  is  whether  the  contract  was  released  by 
the  impossibility  of  performance.  While  a  contract  may  be  so  framed 
as  to  make  the  contracting  party  absolutely  bound  at  all  events,  yet 
such  is  not  the  universal  rule.  In  the  present  case  the  services 
agreed  upon  could  not  have  been  rendered  under  the  contract  unless 
one  or  the  other  of  the  two  animals  could  be  had  for  the  purpose. 
Their  continued  existence  entered  into  the  consideration  of  both 
parties  as  an  indispensable  element  of  performance.  This  being  so, 
and  there  being  nothing  in  the  contract  to  indicate  a  substituted 
performance  as  within  the  design,  the  case  seems  to  fall  within  the 
rule  that  under  such  circumstances  the  existence  of  the  means  of 
performance  is  a  condition  without  which,  in  the  absence  of  fault, 
there  can  be  no  liability.  This  doctrine  is  very  clearly  stated  in  2 
Chit.  Cont.  (nth  Ed.)  1076,  1078,  and  the  citations.  The  doctrine 
is  reasonable,  and  assumes  that  both  parties  become  interested  in 
the  continued  existence  of  the  subject  of  the  condition.  While  the 
question  is  one  of  some  consequence,  we  cannot  but  regret  that  so 
sharp  a  controversy  has  been  continued  on  so  small  a  matter. 

The  judgment  must  be  affirmed. 


IMPOSSIBILITY    OF    PERFORMANCE.  I93 

PINKHAM  V.  LIBBEY,  and  another. 
93  Me.  575.— 1900. 

Whitehouse,  J. — The  plaintiff  agreed  to  pay  the  defendants  $75 
for  the  service  of  their  stallion  to  a  valuable  mare  owned  by  him, 
"with  the  privilege  of  return  for  the  season."  At  the  time  of  the 
service  the  plaintiff  gave  to  the  defendants  his  negotiable  promis- 
sory note  for  the  sum  of  $75  in  full  payment  of  the  contract  price. 
But  the  service  proved  fruitless,  and  the  exercise  of  the  "privilege  of 
return"  was  prevented  by  the  sickness  and  death  of  the  stallion.  In 
the  meantime  the  plaintifif's  note  had  been  discounted  at  a  bank  in 
the  regular  course  of  business,  and,  after  it  had  been  merged  in  a 
judgment  of  the  court,  was  duly  paid. 

The  plaintiff  now  brings  this  action  to  recover  the  amount  paid 
by  him  under  this  contract  on  the  ground  of  a  want  or  failure  of 
consideration. 

It  is  the  opinion  of  the  court  that  upon  the  facts  presented  in  the 
agreed  statement  the  action  is  not  maintainable. 

It  should  be  observed,  in  the  first  place,  that  this  is  not  a  contract 
of  warranty,  but  for  a  service  "with  the  privilege  of  return,"  for 
which  he  was  to  pay  $75.  This  sum  was  not  to  be  divided  and  made 
payable  in  two  instalments,  one  for  the  service  and  another  for  the 
"privilege  of  return,"  or  in  a  specified  instalment  for  each  service. 
The  consideration  was  entire,  and  the  plaintiff  unhesitatingly  gave 
his  negotiable  note  for  the  full  amount  of  the  contract  price  at  the 
time  of  the  service.  This  note  was  presumptively  payment.  It  was 
equivalent  to  cash,  and  the  fact  that  the  plaintiff  was  willing  to  give 
it  has  much  significance  upon  the  precise  understanding  of  the  par- 
ties in  relation  to  this  contract.  By  reason  of  his  knowledge  of  the 
breeding  qualities  of  the  mare,  the  plaintiff  apparently  decided  that 
it  was  not  for  his  interest  to  pay  the  price  of  a  contract  of  warranty, 
but  preferred  to  pay  the  price  of  a  service  with  the  privilege  of  re- 
turn ;  and  from  his  readiness  to  pay  the  entire  sum  at  the  time  the 
contract  was  made  it  is  evident  that  the  service  actually  obtained 
at  that  time  was  deemed  by  him  the  most  important  and  substantial 
feature  of  the  contract.  In  the  event  that  this  service  proved  fruit- 
less, he  had  the  "privilege  of  return"  for  further  service.  But  it 
would  seem  that  the  plaintiff  did  not  consider  it  probable  that  he 
would  have  occasion  to  exercise  the  privilege.  It  is  obvious  that 
that  part  of  the  contract  by  which  one  service  of  the  stallion  was 
actually  obtained  was  considered  positive  and  absolute.  It  depended 
upon  no  contingency.  But  the  "privilege  of  return  for  the  season" 
was  not  absolute  and  unconditional.  It  necessarily  contemplated  the 
continued  existence  of  the  stallion,  and  it  is  a  settled  rule  of  law 
that  "in  contracts  from  the  nature  of  which  it  is  apparent  that  the 
parties  contracted  on  the  basis  of  the  continued  existence  of  a  given 
Woodruff's  Cases — 13 


ig.i.  BENEFITS    CONFERRED    UNDER    CONTRACT. 

person  or  thing,  a  condition  is  implied  that,  if  the  performance  be- 
come impossible  from  the  perishing  of  the  person  or  thing,  that 
shall  excuse  such  performance."  2  Chit.  Cont.  (nth  Am.  Ed.), 
1076;  Knight  V.  Bean,  22  Me.  531;  Marvel  v.  PhilHps,  162  Mass. 
399,  38  N.  E.  1 1 17,  26  L.  R.  A.  416,  and  cases  cited;  Spalding  v. 
Rosa,  71  N.  Y.  40;  Yerrington  v.  Greene,  7  R.  I.  589;  Taylor  v. 
Caldwell,  3  Best  &  S.  826.  The  plaintiff  was  absolutely  assured  of 
one  service  before  the  payment  of  the  contract  price,  but  the  right 
to  further  service  was  contingent  upon  the  life  of  the  stallion.  There 
was  no  guaranty  that  the  horse  would  live  through  the  season. 

The  plaintiff  does  not  controvert  this  familiar  principle.  He  does 
not  deny  "that  in  this  case  the  death  of  the  stallion  excused  exact  or 
full  performance"  of  the  contract.  He  does  not  claim  that  the 
plaintiff  would  be  entitled  to  recover  damages  for  the  non-fulfil- 
ment of  it.  But  he  insists  that  the  death  of  the  stallion  did  not  re- 
lieve the  defendants  from  the  obligation  either  to  return  the  money 
to  the  plaintiff,  or  give  hiin  a  substantial  performance  of  the  con- 
tract by  furnishing  the  service  of  some  other  stallion. 

The  agreement  between  these  parties  was  analogous  to  a  contract 
for  personal  services  involving  the  exercise  of  individual  skill  and 
judginent,  which  can  be  performed  only  by  the  person  named.  Such 
contracts  are  not  deemed  to  be  of  absolute  obligation,  but  are  sub- 
ject to  an  implied  condition  that  the  person  shall  be  alive  and  able 
to  perform  the  services  at  the  time  required.  Dickey  v.  Linscott,  20 
Me.  453  ;  Greenleaf  v.  Grounder,  86  Me.  298,  29  Atl.  1082 ;  Spalding 
v.  Rosa,  supra;  Marvel  v.  Phillips,  supra.  In  the  last-named  case 
the  court  say :  "A  contract  to  render  such  services  and  perform 
such  duties  is  subject  to  the  implied  condition  that  the  party  shall 
be  alive  and  well  enough  in  health  to  perform  it.  Death  or  a  dis- 
ability which  renders  performance  impossible  discharges  the  con- 
tract. Neither  Phillips  nor  his  estate  is  bound  to  furnish  a  substi- 
tute, nor  is  the  plaintiff  bound  to  accept  one." 

The  plaintiff  doubtless  preferred  the  defendants'  stallion  because 
his  pedigree,  record,  and  peculiar  merits  seemed  best  calculated  to 
accomplish  the  purpose  in  breeding  contemplated  by  him.  He  con- 
tracted for  the  service  of  a  particular  stallion,  and  could  not  be  com- 
pelled to  accept  the  services  of  any  other.  The  defendants  con- 
tracted to  furnish  the  services  of  their  stallion,  and  not  the  services 
of  any  other.  Nor  does  it  anywhere  appear  in  the  statement  of  facts 
that  there  was  ever  any  suggestion  or  intimation  from  the  plaintiff 
that  he  desired  or  would  accept  the  service  of  any  other  stallion  in 
lieu  of  that  one  selected  by  him. 

There  is  a  class  of  cases  represented  by  Butterfield  v.  Byron,  153 
Mass.  517,  27  N.  E.  667,  12  L.  R.  A.  571,  in  which  it  is  held  that, 
if  one  contracts  to  furnish  labor  and  material  in  the  construction  of 
a  building,  and  his  contract  becomes  impossible  of  performance  on 
account  of  the  destruction  of  the  building,  he  may  recover  pro  rata 
for  what  he  has  done  or  furnished  ;  and,  on  the  other  hand,  that  the 
owner  of  the  building,  who  has  made  payments  in  advance,  in  such 


IMPOSSUilLITY    OF    PERFORMANCE.  IQS 

a  case  may  recover  back  so  much  of  his  money  as  was  an  overpay- 
ment. But  this  doctrine  is  clearly  inapplicable  to  the  case  at  bar. 
As  before  stated,  the  contract  price  was  indivisible,  and  incapable 
of  apportionment.  The  payment  made  by  the  plaintiff  cannot,  upon 
the  facts  of  this  case,  be  fairly  deemed  an  overpayment.  If,  there- 
fore, the  plaintiff  is  entitled  to  recover  anything,  it  must  be  the  full 
amount  of  the  contract  price.  But  this  vv'ould  be  unjust  to  the  de- 
fendants. It  is  true  the  service  actually  had  was  ineffectual,  and  of 
no  value  to  the  plaintiff.  But  non  constat  that  the  privilege  of  re- 
turn would  have  been  of  any  value.  The  defendants  made  no  en- 
gagement of  warranty  that  any  service  would  be  successful. 

The  absolute  -part  of  the  contract  was  executed  by  the  voluntary 
act  of  the  plaintiff  in  giving  his  negotiable  note  for  the  contract 
price,  and  the  contingent  part  became  impossible  of  performance. 
The  entry  must  therefore  be  : 

Judgment  for  defendants. 


CHANDLER  v.  WEBSTER. 
[1904]  I  K.  B.  493  (Court  of  Appeal). 

The  action  was  brought  by  the  plaintiff  to  recover  a  sum  of  iioo 
paid  by  him  to  the  defendant  as  on  a  total  failure  of  consideration, 
and  the  defendant  counter-claimed  for  a  sum  of  £41  15s. 

It  appeared  that  the  defendant  had  agreed  to  let  a  room  in  Pall 
Mall  to  the  plaintiff  for  the  purpose  of  viewing  the  procession  on  the 
coronation  of  the  King  on  June  26,  1902,  at  the  price  of  £141  15s. 
A  memorandum  of  the  transaction  sent  by  defendant  to  plaintiff 
was  as  follows :  "To  first-floor  room  and  use  of  anteroom  at  back 
at  7  Pall  Mall,  W.,  to  view  the  first  coronation  procession  on  June 
26,  1902,  ii57  los.,  less  10  per  cent.  £15  15s. — £141  15s."  The  de- 
fendant repeatedly  wrote  to  the  plaintiff  asserting  that  by  the  agree- 
ment the  price  of  the  room  was  immediately  payable,  and  demanding 
payment  of  it.  The  plaintiff,  in  a  written  letter  on  May  29,  in  an- 
swer to  one  of  the  defendant's  letters,  wrote,  "there  was  really  no 
fixed  arrangement  that  cash  was  to  be  paid  down,  except  that  it 
was  understood  between  us  that  the  money  should  be  obtained  as 
quickly  as  possible ;"  but  he  never  denied,  in  substance,  that  th.e 
price  of  the  room  was  payable  before  the  procession.  The  plaintiff 
had  hired  the  room  for  the  purpose  of  letting  it  to  a  customer,  but, 
owing  to  the  death  of  a  relative,  the  customer  did  not  ultimately 
want  the  room.  On  June  10,  1902,  the  plaintiff  wrote  a  letter  to  the 
defendant  in  the  following  terms :  "I  beg  to  confirm  my  purchase 
of  the  first-floor  room  of  the  Electric  Lighting  Board  at  7  Pall  Mall, 
to  view  the  procession  on  Thursday,  June  26,  for  the  sum  of  £141 
15s.,  which  amount  is  now  due.  I  shall  be  obliged  if  you  will  take 
the  room  on  sale,  and  I  authorize  you  to  sell  separate  seats  in  the 


196  BENEFITS    CONFERRED    UNDER   CONTRACT. 

room,  for  which  I  will  erect  a  stand.  If  the  seats  thus  sold  in  the 
ordinary  way  of  business  do  not  realize  the  above  amount  by  June 
26,  I  agree  to  pay  you  the  balance  to  make  up  such  amount  of  £141 
15s."  On  June  19  the  plaintiff  paid  the  defendant  a  sum  of  iioo  on 
account  of  the  price  of  the  room.  Subsequently  it  became  impos- 
sible that  the  procession  should  take  place  on  account  of  the  illness 
of  the  King. 

Wright,  J.,  held  that  the  plaintiff  was  not  entitled  to  recover  the 
iioo  which  he  had  paid,  and  that,  on  the  construction  of  the  letter 
of  June  10,  it  appeared  that  the  balance  was  not  payable  until  after 
the  procession,  and  consequently  the  defendant  was  not  entitled  to 
recover  on  the  counter-claim. 

Collins,  M.  R. — In  this  case  the  plaintiff  agreed  with  the  de- 
fendant for  the  hire  of  a  room  for  the  purpose  of  viewing  the  coro- 
nation procession.  The  price  of  the  room  was  to  be  £141  15s.  The 
plaintiff  paid  £100  before  the  date  fixed  for  the  procession,  leaving 
a  balance  of  £41  15s.  unpaid.  The  procession  did  not  take  place. 
The  plaintiff  thereupon  brought  an  action  to  recover  the  £100  which 
he  had  paid,  and  in  that  action  the  defendant  counter-claimed  for 
the  unpaid  balance  of  £41  15s.  The  learned  judge  decided  that  both 
the  claim  and  the  counter-claim  failed ;  that  the  plaintiff  was  not  en- 
titled to  recover  back  the  £100  paid  by  him,  and  the  defendant  was 
not  entitled  to  be  paid  the  balance  of  £41  15s.  Against  this  deci- 
sion both  the  parties  appeal,  the  defendant's  appeal  being  the  first 
in  date.  He  contends  that  in  the  event  which  happened,  having  re- 
gard to  the  terms  of  the  contract,  he  is  entitled  to  the  balance  of 
£41  15s.  which  the  plaintiff  has  refused  to  pay  him.  I  will  deal  with 
that  appeal  first.  The  question  appears  really  to  depend  upon  the 
terms  of  the  contract  made  by  the  parties.  Contracts  in  these  cases 
arising  out  of  the  postponement  of  the  coronation  have  formed  the 
subject  of  several  decisions ;  and  it  has  been  held  that,  in  cases  where 
the  doctrine  of  Taylor  v.  Caldwell,  3  B.  &  S.  826,  applies,  that  is  to 
say,  where  the  parties  have  made  no  express  stipulation  that  money 
paid  for  viewing  the  procession  shall  be  returned  in  the  event  of  no 
procession  taking  place,  and  where,  under  the  circumstances  of  the 
contract,  no  condition  to  that  effect  can  be  implied,  the  result  of  the 
procession  being  prevented  from  taking  place  is,  that  the  further 
performance  of  the  contract  having  become  impossible,  the  person 
who  has  paid  his  money  in  pursuance  of  it,  on  the  footing  of  the 
contract  being  subsequently  performed  in  full,  must,  nevertheless, 
abide  the  loss  of  what  he  has  paid ;  and  the  person  to  whom  a  sum 
would  have  become  payable  on  performance  of  the  contract  must 
also  abide  the  loss,  and  cannot  impose  on  the  other  party  the  obli- 
gation of  paying  that  sum  ;  in  the  event  which  has  happened,  the 
fulfilment  of  the  contract  having  become  impossible,  both  parties 
are  relieved  from  further  ])erformance  of  it.  The  question  is  how 
the  law  so  laid  down  is  to  be  applied  in  the  present  case. 

Dealing  first  with  the  defendant's  counter-claim  for  the  balance 
of  £41   15s.,  I  think  that,  upon  the  authorities,  it  is  clear  that  the 


IMPOSSIBILITY   OF    PERFORMANCE.  I97 

defendant  has  a  right  to  recover  that  balance,  if  the  contract  was 
that  the  price  of  the  room  should  be  paid  before  the  time  at  which 
the  procession  became  impossible.  A  person  who  has  ag'reed  to  pay 
a  sum  of  money  cannot  be  in  a  better  position  by  reason  of  his  hav- 
ing failed  to  perform  his  obligation  to  pay  it  at  the  time  when  he 
ought  to  have  done  so,  than  that  which  he  would  have  occupied  if  he 
had  paid  the  money  in  accordance  with  the  contract.  If  that  be  so, 
the  question  which  we  have  to  consider  is  whether  the  contract  en- 
tered into  bound  the  plaintiff  to  pay  the  price  of  the  room  before 
the  date  at  which  the  procession  became  impossible.  In  my  opinion 
it  did  so  bind  him,  and  it  was  not  a  condition  precedent  to  his  obli- 
gation to  pay  the  money  that  the  procession  should  take  place.  The 
terms  of  the  contract  are  to  be  gathered  from  the  correspondence 
between  the  parties.  I  need  not  refer  to  it  in  detail.  It  appears  to 
me  to  be  clear  upon  the  correspondence  that  the  understanding  was 
that  the  £141  15s.  for  the  use  of  the  room  was  to  be  paid,  either  im- 
mediately or,  at  any  rate,  as  soon  as  possible  after  the  making  of 
the  contract,  and  certainly  before  the  date  when  the  procession  be- 
came impossible.  The  defendant  repeatedly  asserts  in  his  letters 
that  the  money  has  become  payable ;  and  I  do  not  find  that  the  plain- 
tiff substantially  disputes  that  assertion  in  his  answers  further  than 
by  qualifying  it  to  the  extent  of  saying  that  there  was  no  absolute 
bargain  that  the  price  should  be  paid  down  in  cash  immediately 
after  the  making  of  the  contract ;  but  I  think  that  his  qualification 
really  amounts  to  an  admission  that  it  was  payable  before  the  time 
at  which  the  procession  became  impossible.  Great  reliance  is  placed 
by  the  plaintiff's  counsel  upon  the  letter  of  June  10,  upon  which 
Wright,  J.,  decided  the  case,  but  it  appears  to  me  that  that  letter  is 
really  a  clear  admission  by  the  plaintiff  that  the  obligation  to  pay  the 
money  had  already  accrued.  On  that  letter  Wright,  J,  seems  to 
have  come  to  the  conclusion  that  the  happening  of  the  procession 
was  made  a  condition  precedent  to  the  liability  of  the  plaintiff  to 
pay,  and  therefore  that,  as  to  the  balance  of  £41  15s.,  the  plaintiff 
was  not  liable.  For  the  reasons  I  have  already  given  I  do  not  think 
that  was  the  true  effect  of  the  original  contract,  and  the  letter  of 
June  10  appears  to  me  to  begin  with  a  clear  admission  that  the 
whole  amount  of  £141  15s.  was  then  due,  and  then  to  suggest, 
merely  by  way  of  indulgence  to  the  plaintiff,  that  an  opportunity 
should  be  given  him  of  raising  the  money  by  letting  seats  in  the 
room  for  the  procession,  without  any  waiver  of  the  rights  of  the 
defendant  under  the  original  contract.  That  being  so,  in  my  opinion 
the  application  of  the  law,  as  established  by  the  authorities  which 
have  been  cited,  to  this  case  is  clear.  The  fulfilment  of  the  con- 
tract having  become  impossible  through  no  fault  of  either  party, 
the  law  leaves  the  parties  where  they  were,  and  relieves  them  both 
from  further  performance  of  the  contract.  Therefore,  if  by  the  con- 
tract the  obligation  to  pay  for  the  room  did  not  arise  until  after  the 
procession  had  taken  place,  then,  the  obligation  being  based  on  the 
happening  of  the  procession,  which  has  become  impossible,  the  hirer 


198  BENEFITS    CONFERRED    UNDER    CONTRACT. 

is  relieved  from  that  oblig-ation  ;  but  if  by  the  contract  the  oblip^ation 
to  pay  for  the  room  had  accrued  before  the  procession  became  im- 
possible, the  hirer,  if  he  has  paid,  cannot  get  his  money  back,  and,  if 
he  has  not  paid,  is  still  liable  to  pay.  That  being  so,  it  appears  to 
me  that  the  defendant  is  entitled  to  succeed  on  the  counter-claim. 

Then,  with  regard  to  the  plaintiff's  claim  for  a  return  of  the  £100, 
to  a  very  considerable  extent  I  have  already  dealt  incidentally  with 
the  considerations  which  apply  to  that  claim.  The  plaintiff  contends 
that  he  is  entitled  to  recover  the  money  which  he  has  paid  on  the 
ground  that  there  has  been  a  total  failure  of  consideration.  He 
says  that  the  condition  on  which  he  paid  the  money  was  that  the 
procession  should  take  place,  and  that,  as  it  did  not  take  place,  there 
has  been  a  total  failure  of  consideration.  That  contention  does  no 
doubt  raise  a  question  of  some  difficulty,  and  one  which  has  per- 
plexed the  courts  to  a  considerable  extent  in  several  cases.  The 
principle  on  which  it  has  been  dealt  with  is  that  which  was  applied 
in  Taylor  v.  Caldwell,  3  B.  &  S.  826, — namely,  that,  where,  from 
causes  outside  the  volition  of  the  parties,  something  which  was  the 
basis  of,  or  essential  to  the  fulfilment  of  the  contract,  has  become 
impossible,  so  that,  from  the  time  when  the  fact  of  that  impossibility 
has  been  ascertained,  the  contract  can  no  further  be  performed  by 
either  party,  it  remains  a  perfectly  good  contract  up  to  that  point, 
and  everything  previously  done  in  pursuance  of  it  must  be  treated 
as  rightly  done,  but  the  parties  are  both  discharged  from  further 
performance  of  it.  If  the  effect  were  that  the  contract  were  wiped 
out  altogether,  no  doubt  the  result  would  be  that  money  paid  under 
it  would  have  to  be  repaid  as  on  a  failure  of  consideration.  But  that 
is  not  the  effect  of  the  doctrine ;  it  only  releases  the  parties  from 
further  performance  of  the  contract.  Therefore  the  doctrine  of 
failure  of  consideration  does  not  apply.  The  rule  adopted  by  the 
courts  in  such  cases  is,  I  think,  to  some  extent,  an  arbitrary  one,  the 
reason  for  its  adoption  being  that  it  is  really  impossible  in  such  cases 
to  work  out  with  any  certainty  what  the  rights  of  the  parties  in  the 
event  which  has  happened  should  be.  Time  has  elapsed,  and  the 
position  of  both  parties  may  have  been  more  or  less  altered,  and  it 
is  impossible  to  adjust  or  ascertain  the  rights  of  the  parties  with 
exactitude.  That  being  so,  the  law  treats  everything  that  has  al- 
ready been  done  in  pursuance  of  the  contract  as  validly  done,  but 
relieves  the  parties  of  further  responsibility  under  it.  In  the  case 
of  Blakeley  v.  Muller  &  Co.  (1903),  2  K.  B.  760,  Wills,  J.,  in  giv- 
ing judgment  made  some  valuable  observations  on  this  point.  He 
said,  with  regard  to  the  decision  in  Appleby  v.  Myers,  L.  R.  2  C.  P. 
651  :  "That  decision  is,  in  my  opinion,  distinctly  in  point.  The 
argument  for  the  plaintiffs  must  be  that  the  contract  was  rescinded 
ob  initio.  There  is  no  authority  to  warrant  that  contention,  and  I 
cannot  think  it  is  well  founded.  The  process  of  constructing  a 
hypothetical  contract  by  supposing  what  terms  the  parties  would 
have  arrived  at  if  they  had  contemplated  the  possibility  of  what  was 
going  to  happen  is,  to  my  mind,  very  unsatisfactory.     It  is  very 


IMPOSSIIULITV    OF    PERFORMANCE.  IQQ 

difficult  to  construct  such  a  contract  for  them.  Proha1:)ly,  in  tlic 
present  case,  the  defendants  would  have  stipulated  for  compensation 
for  their  outlay,  and  the  plaintiffs  for  a  return  of  their  money ;  but 
it  is  impossible  to  say  with  any  certainty  what  the  result  of  their 
barg-ainint^  would  have  been."  It  seems  to  me  that  he  there  points 
out  the  reason  why  the  courts  have  been  oblif^ed  to  stop  short  where 
they  have,  namely,  at  the  position  of  the  parties  when  the  further 
performance  of  the  contract  was  excused  for  both,  and  why  they 
have  felt  themselves  constrained  to  adopt  what  appears  to  be  a  more 
or  less  arbitrary  rule  on  the  subject.  I  think  the  same  principle  has 
been  adopted  by  the  decision  of  this  court  in  Civil  Service  Co-opera- 
tive Society  v.  General  Steam  Navigation  Co.  [1903],  2  K.  B.  756, 
at  p.  764,  where  the  Lord  Chancellor  approved  of  a  passage  from 
the  judgment  of  Channell,  J.,  in  the  case  of  Blakeley  v.  MuUer 
&  Co.  [1903],  2  K.  B.  760,  at  p.  762.  In  that  passage  the  learned 
judge  supports  what  I  have  already  said,  namely,  that  where  the 
doctrine  of  Taylor  v.  Caldwell,  3  B.  &  S.  826,  and  Appleby  v.  Meyers, 
L.  R.  2  C.  P.  651,  applies,  the  result  is  that  the  law  leaves  the  par- 
ties where  they  were  when  the  further  performance  of  the  contract 
became  impossible.  It  treats  the  contract  as  a  good  and  subsisting 
contract  with  regard  to  things  done  and  rights  accrued  in  accord- 
ance with  it  up  to  that  time ;  but,  as  the  basis  of  the  contract  has 
failed,  it  excuses  the  parties  from  further  responsibility  under  it. 
For  these  reasons  I  think  the  judgment  was  right  as  to  the  claim, 
but  wrong  as  to  the  counter-claim.  The  appeal  must  therefore  be 
allowed  and  the  cross-appeal  disallowed. 

[Concurring  opinions  by  Romer,  L.  J.,  and  Mathew,  L.  J.] 


Editorial  note  from  20  Law  Quarterly  Reviezv,  3:  The  postpone- 
ment of  the  coronation  processions  and  the  naval  review  in  June, 
1902,  gave  rise  to  some  interesting  questions.  In  Krell  v.  Henry 
(1903),  2  K.  B.  740,  ^2  L.  J.  K.  B.  794,  the  defendant  had  agreed 
to  hire  rooms  in  Pall  Mall  for  the  days  only  of  June  26  and  27,  the 
plaintiff  having  announced  that  they  were  to  let  for  viewing  the 
coronation  processions,  but  there  were  no  words  about  that  pur- 
pose in  the  letters  forming  the  agreement.  Darling,  J.  and  the  C. 
A.  held  that  the  transaction  was  really  a  license  to  use  the  rooms 
for  viewing  the  processions,  assuming  that  they  would  take  place 
on  those  days ;  that  their  taking  place  was  the  foundation  of  the 
contract ;  the  C.  A.  held,  correcting  Darling,  J.  in  this  point,  that 
the  failure  which  happened  had  the  effect  of  discharging  both  par- 
ties. The  case  was  both  argued  and  decided  on  the  authoritv  of 
Taylor  v.  Caldwell.  3  B.  &  S.  826,  32  L.  J.  Q.  B.  164 ;  the  decision 
extends  that  authority  somewhat,  for  here  (i)  nothing  was  de- 
stroyed, (2)  there  was  nothing  to  prevent  the  performance  of  any  of 
the  express  terms  of  the  contract.  V/hatever  may  be  the  best  technical 
way  of  classifying  such  cases,  the  real  question  must  be  whether  the 


'200'*  BENEFITS    CONFERRED    UNDER    CONTRACT. 

contract  was  unconditional  or  not.  Suppose  that  here  the  parties' 
desires  had  been  the  other  Vv-ay,  that  the  defendant  had  said :  'I  have 
come  from  Austraha'  (as  in  fact  some  people  did)  'on  purpose,  and 
if  I  cannot  see  the  procession  I  will  see  London,  and  the  use  of  the 
rooms  vv^ill  be  convenient  for  me ;'  and  the  plaintiff  had  said :  'As 
there  is  to  be  no  show,  I  want  to  use  my  rooms  for  business  and 
don't  want  strangers  coming-  in.'  This  will  help  us  to  see  the  justice 
of  the  court's  conclusion.  Accordingly  the  defendant  was  not  liable 
for  the  balance  of  the  agreed  sum  beyond  the  deposit  he  had  paid: 
a  counter-claim  for  the  return  of  the  deposit  was  abandoned,  wisely, 
as  is  shown  by  the  next  case  in  the  December  Law  Reports,  Civil 
Service  Co-operative  Society  v.  General  Steam  Navigation  Co. 
(1903),  2  K.  B.  756,  72  L.  J.  K.  B.  933,  C.  A.,  which  arose  out  of 
the  hiring  of  a  steamer  for  the  naval  review.  It  was  there  held  to 
be  settled  by  authority  that,  when  a  contract  is  avoided  by  failure 
of  its  principal  subject-matter — which  failure,  we  must  now  under- 
stand, may  or  may  not  consist  in  the  destruction  or  non-existence  of 
a  given  physical  object — 'the  loss  must  remain  where  it  was  at  the 
time  of  the  abandonment,'  and  neither  party  can  recover  anything. 
We  doubt  whether  the  resources  of  the  common  law  were  not,  at 
one  time,  capable  of  a  nearer  approximation  to  perfect  justice ;  but 
the  court  of  appeal  has  fixed  the  rule,  and  such  cases  are  not  very 
common,  and  it  is  always  open  to  parties  to  protect  themselves  by 
insurance  or  by  special  terms  in  the  contract  itself.  But  where  a 
person  minded  to  make  profit  by  conveying  passengers  to  see  the 
naval  review  chartered  a  ship  for  that  purpose,  it  was  held,  and  by 
the  same  judges  who  decided  Krell  v.  Henry,  that  this  was  an  ordi- 
nary contract  for  the  employment  of  the  ship,  with  a  specification  of 
the  voyage,  and  the  venture  was  wholly  the  charterer's  own  and  at 
his  risk ;  and  the  ingenious  argument  that  the  ship  never  really  ex- 
isted 'as  a  review-visiting  ship'  was  not  accepted :  Heme  Bav  Steam 
Boat  Co.  v.  Hutton  (1903),  2  K.  B.  683,  72  L.  J.  K.  B.  879,  C.  A. 
In  point  of  fact,  the  fleet  was  still  there,  as  Stirling,  L.  J.  ob- 
served.^ 


GRIGGS  ET  AL.  V.  AUSTIN  et  al. 
3  Pick  (Mass.)  20. — 1825. 

Assumpsit  for  money  had  and  received  and  for  money  lent  and 
accommodated. 

Parker,  C.  J. — This  action  is  indebitatus  assumpsit  on  money 
counts.    It  is  brought  to  recover  back  a  sum  of  money  paid  by  the 

*  For  other  cases  of  disputed  liability  growing  out  of  the  postponement  of 
events  connected  with  the  coronation,  see  Blakeley  v.  Muller  and  Hobson  v. 
Pattcndcn,  [1903]  2  K.  P..  760;  Clark  v.  Lindsay,  88  Law  Times  Rep.  198 
(1903)  ;  Elliott  V.  Crutchley,  [1904]  i  K.  B.  565. 


IMPOSSIDILITY    OF    TERFORMANCE.  20I 

plaintiffs  to  the  defendants  for  the  freig:ht  of  a  number  of  barrels 
of  apples  taken  on  board  their  ship,  the  Topaz,  bound  from  Boston 
to  Liverpool.  It  is  proved  by  the  bill  of  ladinj^  sig^ned  by  the  master, 
and  an  account  made  out  by  the  owners,  with  their  receipt  upon  it, 
that  the  whole  freight  ag"reed  upon  was  paid  before  the  sailing'  of  the 
vessel,  and  the  rej^ort  finds,  that  before  the  vessel  arrived  at  her 
port  of  delivery  abroad,  she  was  stranded  or  wrecked  on  a  beach 
within  six  miles  of  her  port,  by  means  of  which  a  large  portion  of  the 
plaintiffs'  apples  were  destroyed,  or  rendered  worthless  by  the  salt 
water. 

This  brief  statement  presents  the  principal  question  which  has 
been  argued ;  there  are  other  facts  in  the  report  material  to  some 
inferior  questions,  which  will  be  stated  in  their  proper  place. 

The  plaintiffs  contend  that  the  consideration  for  the  payment  of 
the  money  was  the  agreement  on  the  part  of  the  owners  to  trans- 
port the  apples  in  their  ship  to  Liverpool ;  and  that  having  failed 
to  do  this,  they  are  bound  in  conscience  to  return  the  money ;  and 
that  an  action  at  law  lies  for  it,  upon  the  ground  of  failure  of  con- 
sideration. The  defendants  insist,  that  the  payment  of  the  freight 
in  advance  imposes  all  risks  upon  the  owner  of  the  goods,  and  that 
the  failure  of  transportation  and  delivery  having  happened  without 
their  fault,  there  is  no  legal  nor  equitable  principle  which  will  oblige 
them  to  refund.  Some  reliance  in  support  of  their  defense  is  placed 
upon  the  condition  expressed  in  the  bill  of  lading,  that  the  goods  are 
to  be  delivered  safely,  "the  dangers  of  the  seas  excepted  ;"  but  as  this 
condition  has  in  practice  been  applied  only  to  the  contract  in  rela- 
tion to  the  goods  themselves,  so  as  to  protect  the  shipowner  from  a 
demand  for  their  value  in  case  of  loss  by  perils  of  the  sea,  and  has 
never  been  construed  to  bear  upon  the  rights  of  the  parties  in  rela- 
tion to  the  freight,  we  cannot  see  anything  in  that  instrument  which 
can  affect  the  question  before  us.  This  must  stand  upon  the  prin- 
ciples of  marine  or  mercantile  law,  so  far  as  they  may  have  been 
recognized  and  adopted,  or  may  be  found  agreeable  to  the  rules  and 
maxims  of  the  common  law. 

It  is  certainly  a  clear  principle  of  the  common  law,  that  when 
money  is  paid  or  a  promise  made  by  one  party  in  contemplation  of 
some  act  to  be  done  by  the  other,  which  is  the  sole  consideration  of 
the  payment  or  promise,  and  the  thing  stipulated  to  be  done  is  not 
performed,  the  money  may  be  recovered  back,  or  the  promise  founded 
on  such  consideration  may  be  avoided  between  the  parties  to  the 
contract.  This  general  principle  is  the  foundation  of  perhaps  the 
largest  class  of  cases  which  have  been  sustained  under  the  action 
for  money  had  and  received.  Exceptions  may  be  made  by  a  stipula- 
tion of  the  parties,  but  without  such  exceptions  the  rule  seems  to 
be  universal. 

And  this  broad  principle  of  justice  has  been  adopted  in  the  marine 
law,  in  relation  to  this  subject  of  freight,  upon  the  continent  of 
Europe,  as  is  very  fully  proved  by  the  researches  made  and  the 
cases  cited  by  Chief  Justice  Kent,  in  the  case  of  Watson  v.  Duy- 


202  BENEFITS    CONFERRED    UNDER    CONTRACT. 

kinck,  3  Johns.  335.  It  would  be  but  an  affectation  of  learning-  to  go 
over  the  _e:round  which  has  been  so  ably  preoccupied  in  the  opinion 
given  in  that  case,  especially  as  the  same  ground  has  been  traversed 
by  Mr.  Justice  Story  in  a  note  in  his  edition  of  Abbott  on  Merchant 
Ships,  etc.,  which  note  was  avowedly  supplied  from  the  opinion  of 
Chief  Justice  Kent  above  cited.  I  wish  for  one,  since  books  are  so 
prodigiously  multiplied,  to  spare  the  profession  and  the  public  the 
expense  of  reiterated  citations  on  points  indubitably  settled,  when 
both  text  and  comment  may  be  found  in  almost  every  book  in  a  law- 
3^er's  library.  It  is  sufficient  then  to  say,  that  by  reference  to  the 
above-cited  opinion  and  the  note  of  ]\Ir.  Justice  Story,  it  will  be 
found  to  be  the  established  law  of  the  maritime  countries  on  the  con- 
tinent of  Europe,  that  freight  is  the  compensation  for  the  carriage 
of  goods,  and  if  it  be  paid  in  advance,  and  the  goods  be  not  carried 
by  reason  of  any  event  not  imputable  to  the  shipper,  it  is  to  be  re- 
paid, unless  there  be  a  special  agreement  to  the  contrary.  The  com- 
mercial principle  recognized  by  the  continental  nations  is  reduced 
into  the  form  of  a  maxim  in  the  Napoleon  Code  de  Commerce,  tit.  8, 
art.  302.  "No  freight  is  due  for  merchandise  lost  by  shipwreck  or 
stranding,  plundered  by  pirates  or  taken  by  enemies.  The  master 
is  bound  to  restore  freight  which  shall  have  been  advanced,  if  there 
is  no  agreement  to  the  contrary."  This,  like  most  of  the  provisions 
in  the  modern  French  codes,  is  not  the  introduction  of  a  new  prin- 
ciple, but  the  new  promulgation  of  antecedent  law  in  a  more  con- 
venient form,  as  was  the  case  with  the  "Digest"  and  other  works 
executed  under  the  auspices  of  Justinian,  of  whom  the  emperor 
Napoleon  was  in  this  respect  an  imitator. 

It  is  admitted  in  argument,  that  such  is  the  law  of  the  continental 
powers,  but  it  is  suggested  that  it  has  not  been  introduced  into  the 
English  law,  and,  therefore,  there  is  no  evidence  that  it  belongs  to 
our  common  law.  It  is  true  there  are  few  cases  in  the  English  books 
touching  this  point,  but  it  is  equally  true  that  the  principle  has  never 
been  denied  there ;  on  the  contrary,  in  the  case  cited  from  i  Campb. 
Lord  Elleneorough,  who  was  a  great  mercantile  judge,  recognizes 
it  in  the  full  extent  of  the  Code  de  Commerce ;  and  the  cases  cited 
from  4  M.  &  S.,  2  and  4  B.  &  A.  and  5  Taunt,  proceed  upon  the 
ground  of  a  stipulation  in  the  several  contracts  which  were  under 
discussion,  similar  to  the  exception  in  the  continental  rule  above 
cited ;  and  the  obiter  remark  of  Mr.  Justice  Bayley,  in  the  case  of 
De  Silvale  v.  Kendall,  that  wherever  there  is  an  express  stipulation 
that  freight  shall  be  paid  in  advance,  there  must  be  an  express  stipu- 
lation that  it  shall  be  recovered  back  if  the  goods  be  not  carried,  if 
such  be  the  intention,  will  be  found  not  to  militate  against  the  gen- 
eral princij)le. 

A  distinction  was  raised  in  the  argument,  between  payment  of 
freight  and  an  advance  of  it,  it  being  supposed  to  be  recoverable 
back  in  the  latter  case,  but  not  in  the  former.  But  we  do  not  find 
this  distinction  supported  by  authorities,  nor  do  we  see  any  sound 
reason  for  it.   We  tbink  an  advance  of  freight  means  the  same  thing 


IMPOSSIBILITY    OF    TERFORMANCE.  2O3 

as  payment  of  freight  beforehand  or  in  advance,  and  whether  the 
whole  is  paid  or  a  part  we  think  makes  no  difference. 

In  the  EngHsh  cases  cited  a  very  nice  discrimination  has  been 
adopted  between  a  contract  for  freight,  which  inchules  an  obUgation 
to  transport  and  deliver,  and  a  contract  to  receive  the  goods  on  iDoard 
the  vessel.  That  a  contract  of  the  latter  nature  may  be  made,  so  that 
it  will  be  considered  as  executed  by  the  mere  lading  of  the  goods, 
we  do  not  doubt ;  but  we  cannot  think  that  such  a  contract  can  be 
implied  from  the  mere  fact  of  the  freight's  being  paid  down,  be- 
cause reasons  may  and  often  do  exist  for  exacting  this,  without  any 
intention  to  vary  the  legal  liabilities  of  the  parties.  If  persons  ap- 
ply for  a  passage  in  a  vessel,  as  is  often  the  case  between  this  coun- 
try and  Great  Britain,  w^hose  responsibility  may  be  doubtful,  and 
they  are  received  on  board  at  the  customary  price  on  condition  of 
advancing  the  passage -money,  and  the  vessel  should  be  wrecked 
immediately  on  commencement  of  the  voyage,  so  that  the  passengers 
would  have  to  seek  another  vessel  and  pay  their  passage-money 
again,  we  cannot  think  that  the  master  or  shipowner  would  have  a 
right  to  retain  the  money,  unless  there  were  an  express  agreement 
to  that  effect.  The  case  of  Watson  v.  Duykinck  above  cited  is  some- 
what of  this  nature.  In  that  case  the  voyage  was  broken  up  two 
days  after  its  commencement,  and  the  passenger,  instead  of  being 
carried  to  the  Island  of  St.  Thomas,  was  landed  in  Connecticut.  He 
however  was  not  allowed  to  recover  back  the  passage-money  which 
had  been  paid  in  advance,  on  the  ground  that  the  consideration  was 
an  agreement  on  the  part  of  the  master  to  suffer  him  to  proceed  in 
the  sloop,  etc.,  and  that  the  master  had  suffered  him  to  come  on 
board,  which  was  an  execution  of  the  contract.  I  confess  this  does 
not  seem  to  me  to  be  the  most  obvious  effect  of  the  contract ;  but  it 
was  by  this  construction  only  that  the  defendant  prevailed,  the  court 
being  clear  that  were  it  a  common  case  of  passage-money  paid  in 
advance,  by  the  principles  of  the  marine  law,  engrafted  into  the 
common  law,  it  must  have  been  recovered  back.  The  same  principle 
applies  with  equal  force  to  money  paid  in  advance  for  the  freight  of 
goods.  Such  payment  does  not  import  a  relinquishment  of  any  right, 
for  it  may  have  been  exacted  because  the  goods  themselves  might 
not  be  a  sufficient  security  for  the  freight,  and  the  owner  of  the 
goods  might  not  be  responsible.  The  case  before  us  is  likely  to  have 
been  of  that  kind.  Fruit  was  the  subject  of  the  contract;  it  was  of 
a  perishable  nature  and  liable  to  great  uncertainty  as  to  its  value  in 
a  foreign  market ;  the  owner  of  it  may  have  been  a  person  of  no 
property ;  and  for  these  reasons  the  payment  down  may  have  been 
exacted. 

But  one  of  the  counsel  for  the  defendant  has  put  the  case  on 
ground  which  admits  the  general  principle  that  freight  may  be  re- 
covered back  when  the  goods  are  not  delivered,  unless  there  be  an 
agreement  to  the  contrary,  but  he  insists  that  such  an  agreement  does 
appear  from  the  evidence,  that  is.  from  the  bill  of  lading  and  the 
receipt  on  the  account.    But  we  think  they  furnish  no  evidence  of 


204  BENEFITS    CONFERRED    UNDER    CONTRACT. 

such  an  agreement ;  they  merely  prove  that  the  freight  was  paid  in 
advance.  Indeed  it  will  be  seen  at  once,  that  if  the  payment  of 
freight  thus  proved  were  to  be  construed  into  a  stipulation  that  it 
should  not  be  recovered  back,  the  whole  doctrine  of  the  marine  law 
on  this  subject  would  be  useless.  The  maxim  is,  that  freight  paid  in 
advance,  if  the  goods  be  not  carried,  shall  be  returned,  unless  there 
be  a  stipulation  to  the  contrary.  Now  if  the  mere  payment  proved 
such  stipulation  there  would  be  no  case  for  the  rule  to  operate  upon. 
So  that  when  Mr.  Justice  Bayley  says,  that  where  there  is  an  ex- 
press stipulation  to  pay  freight  in  advance,  there  must  also  be  an 
express  stipulation  to  pay  it  back  in  order  to  entitle  the  shipper 
to  recover,  he  means  something  more  than  the  mere  payment  of  the 
freight,  which  may  be  equivocal.  He  means  undoubtedly  an  express 
stipulation  in  the  contract,  because  it  might  be  inferred  from  such 
a  stipulation  that  the  parties  had  calculated  hazards,  and  that  an 
equivalent  had  been  obtained  in  some  form  for  the  advance  of  money 
which  otherwise  would  be  due  only  on  a  contingency.  And  he  was 
there  reasoning  upon  a  case  which  might  fairly  sustain  such  an  ar- 
gument. 

It  is  said  that  the  rate  of  exchange  between  this  country  and 
England  gave  an  advantage  to  the  plaintififs  which  may  have  been 
the  consideration  for  paying  freight  in  advance.  That  fact  does  not 
appear  in  the  report,  and  if  it  did  it  could  not  affect  our  decision. 
If  the  intent  of  the  parties  had  been  submitted  to  the  jury,  as  was 
done  by  Chief  Justice  Gibbs  in  the  case  cited  from  5  Taunt.  435,  it 
might  have  been  material,  but  we  do  not  find  that  the  fact  was 
offered  to  be  proved  at  the  trial,  so  that  we  do  not  see  that  any  use 
can  now  be  made  of  it. 

Judgment  for  the  plaintiffs.^ 


BoswoRTH,  J.,  IN  PHELPS  V.  WILLIAMSON. 

5  Sandf.   (N.  Y.)  578,  584.— 1852. 

It  is  undoubtedly  competent  for  the  parties  to  contract  upon  any 
terms  they  may  think  proper ;  and  the  shipper  may  agree  to  pay 
freight  in  advance  in  consideration  of  the  carrier's  promise  to  receive 
the  goods  on  board,  and  to  undertake  to  carry  and  safely  deliver 
them  at  some  other  port.  In  such  a  case  the  carrier  is  entitled  to  the 
freight  according  to  the  contract,  and  if  the  performance  of  the 
promise  on  his  part  becomes  impossible  by  the  act  of  God,  he  is 
excused  from  non-performance  and  the  loss  falls  upon  the  shipper. 
This  would  be  so  on  general  principles  applicable  to  all  contracts 

'Accord,  Emery  v.  Dunbar,  i  Daly  (N.  Y.  C.  P.)  408  (1865).  The  same 
rule  applies  to  passage  money  paid  in  advance.  Brown  v.  Harris,  2  Gray 
359  (1854). 


IMPOSSIBILITY    OF    PERFORMANCE.  205 

where  the  thinef  clone  or  money  paid  by  the  one  party  is  the  consider- 
ation of  a  promise  of  the  other  party  to  do  something  on  his 
part.  If  performance  becomes  im])Ossible  through  some  overriding 
necessity,  and  without  the  fault  of  the  party  promising,  the  other 
party  cannot  recover  back  the  money  paid,  nor  for  the  thing  done. 
It  is  also  a  well-settled  principle  of  law,  that  where  money  is  paid, 
or  a  promise  made  by  one  party  in  contemplation  of  some  act  to  be 
done  by  the  other,  and  the  doing  of  which  is  the  sole  consideration 
of  the  right  to  receive  payment  or  require  a  performance  of  the 
promise,  and  the  thing  stipulated  to  be  done  is  not  performed,  the 
money  may  be  recovered  back,  or  the  promise  founded  on  such  con- 
sideration may  be  avoided  between  the  parties  to  the  contract. 

In  this  case,  by  the  settled  principles  of  law,  and  the  legal  effect 
of  the  contract  as  evidenced  by  the  bill  of  lading,  the  right  to  freight 
depended  on  the  performance  of  the  voyage  and  a  delivery  of  the 
goods  at  San  Francisco.  The  goods  were  not  carried  to  that  port. 
It  was  no  fault  of  the  shipper.  After  the  contract  had  been  made, 
and  the  legal  rights  and  liabilities  of  the  parties  had  become  fixed, 
the  shipper  advanced  the  freight.  The  act,  the  doing  of  which  en- 
titled the  defendants  to  it,  has  not  been  done.  The  defendants  have 
not  performed  the  acts,  the  performance  of  which  was  a  condition 
precedent  to  their  right  to  require  payment.  The  consideration  for 
the  advance  has  failed,  and  the  defendants  must  refund  the  money. 
Story,  J.,  in  Pitman  v.  Hooper,  3  Sumner  66,  comments  on  the  case 
in  2  Shower  R.  283,  as  one  loosely  reported,  and  not  easily  recon- 
cilable with  the  strict  principle,  and  declares  his  opinion  of  the  law 
to  be,  that  in  the  ordinary  case  of  freight  paid  in  advance,  if  the 
voyage  is  not  performed,  the  shipper  may  recover  it  back,  unless  it 
was  paid  under  an  express  agreement  to  the  contrary.  Ch.  J.  Kent, 
in  Watson  v.  Duykinck,  3  J.  R.  335,  and  in  his  Com.,  vol.  3,  p.  226, 
lays  down  the  rule  of  law  applicable  to  this  subject,  as  it  was  de- 
cided to  be,  in  Griggs  v.  Austin,  3  Pick.  20;  Mashiter  v.  Buller,  i 
Camp.  84,  is  to  the  same  effect. 


ANONYMOUS. 
2  Shower  283. — 1683. 

This  was  ruled  by  Saunders,  Chief  Justice,  on  evidence  in  a 
trial  at  Guildhall. 

First.  Freight  is  the  mother  of  wages,  and  wheresoever  freight  is 
due,  wages  is  so. 

Secondly.  If  a  ship  be  lost  before  it  come  to  a  delivering  port, 
no  freight  nor  wages  is  due ;  if  lost  afterwards  it  is  due  to  the  last 
delivering  port. 

Thirdly,  Advance-money  paid  before,  if  in  part  of  freight,  and 
named  so  in  the  charter-party,  although  the  ship  be  lost  before  it 


206  BENEFITS    CONFERRED    UNDER    CONTRACT. 

come  to  a  delivering  port,  yet  wages  are  due  according  to  the  pro- 
portion of  the  freight  paid  before;  for  the  freighters  cannot  have 
their  money.^ 


e.    Illegal  Contracts. 

i.    In  General. 

WHITE  V.  FRANKLIN  BANK. 

22  Pick.  (Mass.)  i8i. — 1839. 

'  By  an  agreed  statement  of  facts,  it  appeared,  that  on  the  loth  of 
February,  1837,  the  plaintiff  deposited  with  the  defendants  the  sum 
of  $2,000,  and  received  from  them  a  book  containing  the  following 
words  and  figures,  to  wit : 

"Dr.  Franklin  Bank  in  account  with  B.  F.  White,  Cr.  1837,  Feb. 
loth.  To  cash  deposited,  $2,000.  The  above  deposit  to  remain  until 
the  loth  day  of  August.   E.  F.  Bunnell,  Cashier." 

It  further  appeared,  that  on  the  7th  of  July,  1837,  the  plaintiff 
brought  this  action  against  the  bank  to  recover  the  money  so  de- 
posited by  him,  declaring  on  the  money  counts,  and  on  an  account 
stated.  If  the  court  should  be  of  opinion,  that  the  action  could  be 
maintained,  the  defendants  were  to  be  defaulted  and  judgment  ren- 
dered for  the  sum  of  $2,000,  with  interest ;  otherwise  the  plaintiff 
was  to  become  non-suit. 

Wilde,  J. — The  first  ground  of  the  defense  is,  that  the  action  was 
prematurely  commenced.  The  entry  in  the  book  given  to  the  plain- 
tiff by  the  cashier  of  the  bank,  is  undoubtedly  good  evidence  of  a 
promise  to  pay  the  amount  of  the  deposit  on  the  loth  day  of  August ; 
and  if  this  was  a  valid  and  legal  promise,  this  action  cannot  be  main- 
tained. But  it  is  very  clear,  that  this  promise  or  agreement  that  the 
deposit  should  remain  in  the  bank  for  the  time  limited,  is  void  by 
virtue  of  the  Revised  Stat.  c.  36,  sec.  57,  which  provides  that  no 
bank  shall  make  or  issue  any  note,  bill,  check,  draft,  acceptance,  cer- 

^In  Byrne  v.  Schiller,  L.  R.  6  Exch.  319  (1871),  the  court  says  (pp.  325, 
326)  :  "It  is  settled  by  the  authorities  referred  to  in  the  course  of  the  argu- 
ment, that  by  the  law  of  England  a  payment  made  in  advance  on  account 
of  freight  cannot  be  recovered  back  in  the  event  of  the  goods  being  lost,  and 
the  freight  therefore  not  becoming  payable.  I  regret  that  the  law  is  so.  I 
tliink  it  foimded  on  an  erroneous  principle  and  anything  but  satisfactory; 
and  I  am  emboldened  fo  say  this  by  finding  thai  the  American  authorities 
have  settled  the  law  upon  directly  opposite  principles,  and  that  the  law  of 
every  European  country  is  in  conformity  with  the  American  doctrine  and 
contrary  to  ours.  In  France  and  Germany  the  rule  has  been  settled  for  long 
time.  *  *  *  *  P5nt  whatever  <may  be  the  true  principle.  T  quite  agree 
that  the  authorities  founded  on  the  ill-digested  case  in  Shower  (Anon.,  2 
.Show.  283)  are  too  strong  to  be  overcome;  and  if  the  law  is  to  be  altered,  it 
must  be  done  by  the  legislature  and  not  by  contrary  decisions." 


ILLEGAL    CONTRACTS.  20^ 

tificate  or  contract,  in  any  form  whatever,  for  the  payment  of  money, 
at  any  future  day  certain,  or  with  interest,  excepting-  for  money  that 
may  be  borrowed  of  the  Commonwealth,  with  other  exceptions  not 
material  in  the  present  case.  The  agreement  that  the  deposit  should 
remain  until  the  loth  day  of  August  amounts  in  law,  by  the  obvious 
construction  and  meaning  of  it,  to  a  promise  to  pay  on  that  day. 
This  therefore  was  an  illegal  contract  and  a  direct  contravention  of 
the  statute.  Such  a  promise  is  void ;  and  no  court  will  lend  its  aid 
to  enforce  it.  This  is  a  well-settled  principle  of  law.  It  was  fully  dis- 
cussed and  considered  in  the  case  of  Wheeler  v.  Russell,  17  Mass.  R. 
281  ;  and  the  late  Chief  Justice,  in  delivering  the  opinion  of  the  court, 
remarked,  "that  no  principle  of  law  is  better  settled,  than  that  no 
action  will  lie  upon  a  contract  made  in  violation  of  a  statute,  or  of 
a  principle  of  the  common  law."'  The  same  principle  is  laid  down 
in  Springfield  Bank  v.  Merrick,  14  Mass.  R.  322,  and  in  Russell  v. 
DeGrand,  15  Mass.  R.  39.  In  Relding  v.  Pitkin,  2  Caines's  R.  149. 
Thompson,  J.,  said  "it  is  a  first  principle,  and  not  to  be  touched. 
that  a  contract,  in  order  to  be  binding,  must  be  lawful."  The  same 
principle  is  fully  established  by  the  English  authorities.  In  Shififner 
v.  Gordon,  12  East  304,  Lord  Ellenborough  laid  it  down  as  a  set- 
tled rule,  "that  where  a  contract  which  is  illegal,  remains  to  be  ex- 
ecuted, the  court  will  not  assist  either  party,  in  an  action  to  recover 
for  the  non-execution  of  it."  It  is  therefore  very  clear,  we  think, 
that  no  action  can  be  maintained  on  the  defendant's  express  prom- 
ise, and  that  if  the  plaintiff  be  entitled  tO'  recover  in  any  form  of 
action,  it  must  be  founded  on  an  implied  promise. 

The  second  objection,  and  that  on  which  the  defendant's  counsel 
principally  rely,  proceeds  on  the  admission  that  the  contract  is  il- 
legal ;  and  they  insist  that  where  money  has  been  paid  by  one  of  two 
parties  to  the  other,  on  an  illegal  contract,  both  being  parficipes 
criminis,  no  action  can  be  maintained  to  recover  it  back.  The  rule 
of  law  is  so  laid  down  by  Lord  Kenyon,  in  Howson  v.  Hancock,  8 
T.  R.  577,  and  in  other  cases.  This  rule  may  be  correctly  stated  in 
respect  to  contracts  involving  any  moral  turpitude,  but  when  a  con- 
tract is  merely  mahini  prohibifnin,  the  rule  must  be  taken  with  some 
qualifications  and  exceptions,  without  which  it  cannot  be  reconciled 
with  many  decided  cases.  The  rule  as  stated  by  Comyns,  in  his 
treatise  on  contracts,  will  reconcile  most  of  the  cases  which  are  ap- 
parently conflicting.  "When  money  has  been  paid  upon  an  illegal 
contract,  it  is  a  general  rule,  that  if  the  contract  be  executed,  and 
both  parties  are  in  pari  delicto,  neither  of  them  can  recover  from 
the  other  the  money  so  paid ;  but  if  the  contract  con*-inues  executory, 
and  the  party  paying  the  money  be  desirous  of  rescinding  it,  he  may 
do  so,  and  recover  back  his  deposit  by  action  of  indebitatus  assumpsit 
for  money  had  and  received.  And  this  distinction  is  taken  in  the 
books,  namely,  where  the  action  is  in  affirmance  of  an  illegal  con- 
tract, the  object  of  which  is  to  enforce  the  performance  of  an  en- 
gagement prohibited  by  law,  clearly  such  an  action  can  in  no  case 
be  maintained ;  but  where  the  action  proceeds  in  disaffirmance  of 


2o8  BENEFITS    CONFERRED    UNDER    CONTRACT. 

such  a  contract,  and,  instead  of  endeavoring  to  enforce  it,  presumes 
it  to  be  void  and  seeks  to  prevent  the  defendant  from  retaining  the 
benefit  which  he  derived  from  an  unlawful  act,  there  it  is  consonant 
to  the  spirit  and  policy  of  the  law,  that  the  plaintiff  should  recover." 
2  Com.  on  Contr.  109.  The  rule,  with  these  qualifications  and  dis- 
tinctions, is  well  supported  by  the  cases  collected  in  Comyns  and  by 
later  decisions.  The  question  then  is,  whether,  in  conformity  with 
these  principles,  upon  the  facts  agreed,  this  action  can  be  maintained. 

The  first  ground  on  which  the  plaintiff's  counsel  rely,  in  answer 
to  the  defendants'  objection  is,  that  there  was  no  illegality  in  mak- 
ing the  deposit,  and  that  the  illegality  of  the  transaction  is  confined 
to  the  promise  of  the  bank,  and  the  security  given  for  the  repayment, 
that  alone  being  prohibited  by  the  statute.  The  leading  case  on  this 
point  is  that  of  Robinson  v.  Bland,  2  Burr.  1077.  That  was  an 
action  on  a  bill  of  exchange  given  for  money  lent  and  for  money 
won  at  play.  By  the  St.  9  Anne,  c.  14,  it  was  enacted  that  all 
notes,  bills,  bonds,  judgments,  mortgages  or  other  securities  for 
money  won  or  lent  at  play,  should  be  utterly  void.  The  court 
held,  that  the  plaintiff  was  not  entitled  to  recover  on  a  bill  of  ex- 
change, but  that  he  might  recover  on  the  money  counts  for  the 
money  lent,  although  it  was  lent  at  the  same  time  and  place  that  the 
other  money  for  which  the  bill  was  given,  was  won.  The  same 
principle  was  laid  down  in  the  cases  of  Utica  Ins.  Co.  v.  Scott,  19 
Johns.  R.  I  ;  Utica  Ins.  Co.  v.  Caldwell,  3  Wendell  296 ;  and  Utica 
Ins,  Co.  V,  Bloodgood,  4  Wendell  652.  In  these  cases  the  de- 
cisions were,  that  although  the  notes  were  illegal  and  void  as  se- 
curities, yet  that  the  money  lent,  for  which  the  notes  were  given, 
might  be  recovered  back.  The  principle  of  law  established  by  these 
decisions  is  applicable  to  the  present  case.  The  only  doubt  arises 
from  the  meaning  of  the  word  "contract,"  in  the  prohibitory  statute. 
But  taking  that  word  in  connection  with  the  other  words  of  pro- 
hibition, we  think  it  equivalent  to  the  promise  of  the  bank,  and  tliat 
the  intention  of  the  legislature  was,  to  prohibit  the  making  or  issuing 
of  any  security  in  any  form  whatever,  for  the  payment  of  money  at 
any  future  day. 

The  next  answer  to  the  objection  of  the  defendants'  is,  that  al- 
thou,2;1i  the  plaintiff  may  be  considered  as  being  particeps  criminis 
with  the  defendants,  they  are  not  in  pari  delicto.  It  is  not  uni- 
versally true  that  a  party  who  pays  money  as  the  consideration 
of  an  illegal  contract,  cannot  recover  it  back.  Where  the  parties 
are  not  in  pari  delicto,  the  rule  potior  est  conditio  defendentis,  is  not 
applicable.  In  Lacaussade  v.  White,  7  T.  R.  535,  the  court  says, 
"that  it  was  more  consonant  to  the  principles  of  sound  policy  and 
justice,  that  wherever  money  has  been  paid  upon  an  illegal  consid- 
eration it  may  be  recovered  back  again  by  the  party  who  has  thus 
improperly  paid  it,  than,  by  denying  the  remedy,  to  give  effect  to  the 
illegal  contract."  This  i)rinciple,  however,  is  not  by  law  allowed  to 
operate  in  favor  of  cither  party,  where  the  illegality  of  the  con- 
tract arises  from  any  moral  turpitude.    In  such  cases  tlie  court  will 


ILLEGAL    CONTRACTS.  20^ 

not  undertake  to  ascertain  the  relative  guilt  of  the  parties,  or  afiford 
relief  to  either.  But  where  money  is  paid  on  a  contract  which  is 
merely  prohibited  by  statute,  and  the  receiver  is  the  principal  of- 
fender, he  may  be  compelled  to  refund.  This  is  not  only  consonant 
to  the  principles  of  sound  policy  and  justice,  but  is  now  so  settled 
by  authority,  whatever  doubts  may  have  been  entertained  respect- 
ing- it  in  former  times.  In  the  case  of  Smith  v.  Bromley,  2  Doug. 
696,  note,  it  was  decided,  that  the  plaintiff  was  entitled  to  recover 
in  an  action  for  money  had  and  received,  for  money  paid  by  the 
plaintiff  to  the  defendant  for  the  purpose  of  inducing  him  to  sign 
the  certificate  of  a  bankrupt,  the  plaintiff's  sister.  Lord  Mansfield 
laid  down  the  doctrine  on  this  point,  wliich  has  been  repeatedly 
confirmed.  'Tf  the  act  is  in  itself  immoral,  or  a  violation  of  the  gen- 
eral laws  of  public  policy,  there  the  party  paying  shall  not  have  this 
action ;  for  where  both  parties  are  equally  criminal  against  such 
general  laws,  the  rule  is  potior  est  conditio  defcndcntis.  But  there 
are  other  laws  which  are  calculated  for  the  protection  of  the  sub- 
jects against  oppression,  extortion,  deceit,  etc.  If  such  laws  are 
violated,  and  the  defendant  takes  advantage  of  the  plaintiff's  con- 
dition or  situation,  there  the  plaintiff  shall  recover."  And  this 
doctrine  was  afterward  adhered  to  and  confirmed  by  the  whole 
court,  in  the  case  of  Jones  v.  Barkley,  2  Doug.  684. 

On  this  distinction  it  has  ever  since  been  held,  that  where  usurious 
interest  has  been  paid,  the  excess  above  the  legal  interest  may  be  re- 
covered by  the  borrower  in  an  action  for  money  had  and  re- 
ceived. So,  money  paid  to  a  lottery-office-keeper  as  a  premium  for 
an  illegal  insurance  is  recoverable  back  in  an  action  for  money  had 
and  received.  Jaques  v.  Golightly,  2  W.  Bl.  1073.  But  in  Brown- 
ing v,  Morris,  2  Cowper  790,  it  was  decided,  that  where  a  lottery- 
office-keeper  pays  money  in  consequence  of  having  insured  the  de- 
fendant's tickets,  such  contract  being  prohibited  by  St.  17  Geo.  3, 
c.  46,  he  cannot  recover  it  back,  though  the  premium  of  insurance 
paid  by  the  insured  to  the  lottery-oftice-keeper  might  be.  The 
distinction,  on  which  this  case  was  decided,  is  very  material  in  the 
present  case.  Lord  Mansfield  referred  to  the  determination  in 
Jaques  v.  Golig^itly,  where  it  was  said,  "that  the  statute  is  made  to 
protect  the  ignorant  and  deluded  multitude,  who,  in  hopes  of  gain 
and  prizes,  and  not  conversant  in  calculations,  are  drawn  in  by  the 
office-keepers."  And  he  adds,  "it  is  very  material  that  the  statute 
itself,  by  the  distinction  it  makes,  has  marked  the  criminal ;  for 
the  penalties  are  all  on  one  side ;  upon  the  office-keeper.  The  man 
who  makes  the  contract  is  liable  to  no  penalty.  So,  in  usury,  there  is 
no  penalty  upon  the  party  who  is  imposed  upon."  The  same  dis- 
tinction is  noticed  and  enforced  by  Lord  Ellenborough,  in  Williams 
v.  Hedley,  8  East  378.  In  that  case  it  was  decided,  that  where  money 
was  paid  to  a  plaintiff  to  compromise  a  qui  tarn  action  for  usury,  it 
might  be  recovered  back  in  an  action  for  money  had  and  received  ;  be- 
cause the  prohibition  and  penalties  of  the  St.  18  Eliz.,  c.  5,  attached 
Woodruff's  Cases — 14 


2IO  BENEFITS    CONFERRED    UNDER    CONTRACT. 

only  on  "the  informer  or  plaintiff,  or  other  person  suing  out  process 
in  the  penal  action,  making  composition,  etc."  It  was  argued  for  the 
defendant  in  that  case,  "that  as  the  act  of  the  defendant  co-operated 
with  that  of  the  plaintiff  in  producing  the  mischief  meant  to  be  pre- 
vented and  restrained  by  the  statute,  it  was  so  far  illegal,  on  the 
part  of  the  defendant  himself,  as  to  preclude  him  from  any  remed}' 
by  suit  to  recover  back  money  paid  by  him  in  furtherance  of  that 
object,  and  that  if  he  was  not  therefore  to  be  considered  as  strictly 
ill  pari  delicto  with  the  plaintiff  in  the  qui  tarn  action,  he  was  at  any 
rate  particcps  criminis,  and  in  that  respect  not  entitled  to  recover 
from  his  co-delinquent,  money  which  he  had  paid  him  in  the  course 
and  prosecution  of  their  mutual  crime."  This  argument  was  over- 
ruled, and  Lord  Ellenborough  fully  approved  the  doctrine  laid 
down  by  Lord  Mansfield  in  Smith  v.  Bromley,  and  the  decisions  in 
the  several  cases  in  which  that  doctrine  had  been  confirmed.  The 
same  distinction  has  been  recognized  in  other  cases,  and  was  adopted 
by  this  court  in  Worcester  v.  Eaton,  ii  Alass.  R.  376,  in  which 
Parker,  C.  J.,  after  referring  to  the  above  cases,  said:  "This  dis- 
tinction seems  to  have  been  ever  afterwards  observed  in  the  English 
courts,  and  being  founded  in  sound  principle,  is  worthy  of  adoption, 
as  a  principle  of  the  common  law  in  this  country." 

The  principle  is,  in  every  respect,  applicable  to  the  present  case, 
and  is  decisive.  The  prohibition  is  particularly  leveled  against  the 
bank,  and  not  against  any  person  dealing  with  the  bank.  In  the 
words  of  Lord  Mansfield,  "the  statute  itself,  by  the  distinction  it 
makes,  has  marked  the  criminal."  The  plaintiff  is  subject  to  no 
penalty,  but  the  defendants  are  liable  for  the  violation  of  the  statute 
to  a  forfeiture  of  their  charter.  To  decide  that  this  action  cannot 
be  maintained  would  be  to  secure  to  the  defendants  the  fruits  of  an 
illegal  transaction,  and  would  operate  as  a  temptation  to  all  banks 
to  violate  the  statute,  by  taking  advantage  of  the  unwary  and  of 
those  who  may  have  no  actual  knowledge  of  the  existence  of  the 
prohibition  of  the  statute,  and  who  may  deal  with  a  bank  without 
any  suspicion  of  the  illegality  of  the  transaction  on  the  part  of  the 
bank. 

There  is  still  another  ground  on  whidi  the  plaintift''s  counsel  rely. 
This  action  proceeds  in  disaffirmance  of  an  executory  illegal  con- 
tract, and  was  commenced  before  the  money  which  the  defendants 
contracted  to  pay  was  by  the  terms  of  the  contract  payable ;  the 
plaintiff  therefore  had  a  right  to  rescind  the  contract,  or  rather  to 
treat  it  as  a  void  contract,  and  to  recover  back  the  consideration 
money.  It  was  so  decided  in  Walker  v.  Chapman,  Lofft  342,  where 
money  had  been  paid,  in  order  to  procure  a  place  in  the  customs, 
but  the  place  had  not  been  procured  ;  and  in  an  action  brought  by  the 
party  who  paid  t1ie  money,  it  was  held,  that  he  should  recover,  be- 
cause the  contract  continued  executory.  This  case  was  cited  with 
approbation  by  Bi'Ller,  J.,  in  Lowery  v.  Bourdieu,  2  Dougl.  470, 
and  the  distinction  between  contracts  executed  and  executory,  he 
said,  was  a  sound  one.     The  same  distinction  has  been  recognized 


ILLEGAL    CONTRACTS.  211 

in  actions  brought  to  recover  back  money  paid  on  illej;al  waiters, 
where  both  parties  were  in  pari  delicto.  The  case  of  Tappenden  v. 
Randall,  2  Bos.  &  Pul.  467,  was  decided  on  that  distinction.  Heath, 
J.,  said,  "it  seems  to  me  that  the  distinction  adopted  by  Mr.  Justice 
BuLLER  between  contracts  executory  and  executed,  if  taken  with 
those  modifications  which  he  would  necessarily  have  applied  to  it, 
is  a  sound  distinction.  Undoubtedly  there  may  be  cases  where  the 
contract  may  be  of  a  nature  too  grossly  immoral  for  the  court  to 
enter  into  any  discussion  of  it ;  as  where  one  man  has  paid  money 
by  way  of  hire  to  another  to  murder  a  third  person.  But  where 
nothing  of  the  kind  occurs,  I  think  there  ought  to  be  loais  pocnit- 
cntiac,  and  that  a  party  should  not  be  compelled  against  his  will  to 
adhere  to  the  contract."  The  same  distinction  is  recognized  in 
several  other  cases.  5  T.  R.  405  ;  i  H.  Bl.  67 ;  7  T.  R.  535  ;  3  Taunt. 
2yy;  4  Taunt.  290.  In  the  case  of  Aubert  v.  Walsh,  3  Taunt.  277, 
the  authorities  were  considered  and  the  law  was  definitely  settled 
as  above  stated ;  and  it  does  not  appear  that  it  has  ever  since  been 
doubted.  In  Utica  Ins.  Co.  v.  Kip,  8  Cowen  20,  the  same  principle 
is  recognized,  although  the  case  was  not  expressly  decided  on  that 
point.  The  distinction  seems  to  be  founded  in  wise  policy,  as  it  has 
a  tendency  in  some  measure  to  prevent  the  execution  of  unlawful 
contracts,  and  can  in  no  case  work  injustice  to  either  party. 

It  is,  however,  denied  by  the  defendants'  counsel  that  the  contract 
in  question  was  executory,  within  the  true  intent  and  meaning  of 
these  decisions  and  the  doctrine  now  laid  down.  This  question  has 
not  been  much  discussed,  and  it  is  not  necessary  to  decide  it  in  the 
present  case,  the  court  being  clearly  of  opinion  that  the  plaintiff  is 
entitled  to  recover  on  the  other  grounds  mentioned.  We  have  con- 
sidered the  question  as  to  the  distinction  between  executory  and 
executed  contracts,  because  it  may  be  of  some  importance  that  the 
law  in  that  respect  should  not  be  supposed  to  be  doubtful  in  our 
opinion,  which  might  be  inferred,  perhaps,  if  we  should  leave  this 
question  unnoticed. 

The  only  remaining  question  is,  whether  the  plaintiff  was  bound 
to  make  a  demand  on  the  bank  before  he  commenced  his  action. 
The  general  rule  is  that  where  money  is  due  and  payable,  an 
action  will  lie  without  any  previous  demand.  But  where  money  is 
deposited  in  a  bank  in  the  usual  course  of  business,  we  should  cer- 
tainly hold  that  a  previous  demand  would  be  requisite.  But  if 
money  should  be  obtained  by  a  bank  by  fraud,  or,  as  in  the  present 
case,  by  means  of  an  illegal  contract,  the  bank  claiming  to  hold  it 
under  such  contract,  there  can  be  no  good  reason  given  why  the  bank 
should  be  exempted  from  the  operation  of  the  general  rule.  In 
Clark  v.  Moody,  17  Mass.  R.  145,  it  was  held,  that  if  a  factor  should 
render  an  untrue  account,  claiming  a  greater  credit  than  he  was  en- 
titled to,  the  principal  would  have  a  right  of  action  without  a  de- 
mand. If  the  defendants  had  sold  to  the  plaintiff  a  post-note  pay- 
able at  a  future  day,  it  could  hardlv  be  doubted  that  an  action  would 
lie  to  recover  back  the  consideration  money,  without  any  previous 


(  212;  BENEFITS    CONFERRED    UNDER    CONTRACT. 

demand ;  and  there  seems  to  be  no  substantial  distinction  between 
such  a  case  and  the  one  in  question. 

Judgment  on  default.^ 


STACY  V.  FOSS. 

19  Me.  335.— 1841. 

Assumpsit,  to  recover  the  sum  of  twenty-five  dollars,  deposited 
with  the  defendant  by  the  plaintiff,  as  a  stakeholder,  on  a  bet  on  a 
horse-trot, 

Weston,  C.  J. — It  is  conceded  that  the  bet  out  of  which  this  con- 
troversy grew  is  not  a  valid  contract.  And  it  has  been  decided  by 
this  court  that  all  wagers  in  this  state  are  unlawful.  Lewis  v.  Little- 
field,  15  Maine  R.  233.  The  action,  however,  is  resisted  on  the 
ground  that  the  stakeholder  is  a  party  to  the  unlawful  contract,  and 
that  both  plaintiff  and  defendant  being  in  pari  delicto,  the  law  will 
lend  its  aid  to  neither.  And  a  distinction  is  taken  between  notice  to 
the  stakeholder,  repudiating  and  disaffirming  the  contract,  before  and 
after  the  happening  of  the  event,  upon  which  the  wager  is  made  to 
depend. 

When  the  money  has  once  been  paid  over  to  the  winner,  unless 
where  made  recoverable  by  statute,  the  parties  being  clearly  in  pari 
delicto,  no  action  can  be  maintained  to  recover  it  back.  Howson  v. 
Hancock,  8  T.  R.  575  ;  McCullum  v.  Gourlay,  8  Johns.  147.  But 
where  the  money  has  not  been  paid  over  by  the  stakeholder,  although 
it  has  been  lost  by  the  happening  of  the  event,  it  has  been  held,  that 
upon  notice  and  demand  the  stakeholder  is  liable  to  the  loser  for  the 
amount  by  him  deposited.  Cotton  v.  Thurland,  5  T.  R.  405  ;  Lacaus- 

^  Accord,  Smart  v.  White,  73  Me.  332  (1882),  and  Tracy  v.  Talmage,  14 
N.  Y.  162  (1856),  in  both  of  which  cases  the  authorities  are  reviewed,  and  in 
which  latter  case  the  rule  is  stated  as  follows  (p.  181)  : 

"It  was  insisted  by  the  counsel  for  the  receiver,  upon  the  argument,  that 
in  no  case  would  relief  be  afforded  to  any  party  to  an  illegal  contract,  unless 
he  applied  for  such  relief,  or,  at  least,  had  elected  to  disaffirm  the  contract 
while  it  remained  cxcctifory.  This  position  cannot,  I  think,  be  sustained.  It 
overlooks  distinctions  which  are  clearly  settled.  The  cases  in  which  the 
courts  will  give  relief  to  one  of  the  parties  on  the  ground  that  he  is  not 
in  pari  delicto,  form  an  independent  class,  entirely  distinct  from  those  cases 
which  rest  upon  a  disaffirmance  of  the  contract  before  it  is  executed.  It  is 
essential,  to  both  classes,  that  the  contract  be  merely  malum  prohibitum.  If 
malum  in  se,  the  courts  will  in  no  case  interfere  to  relieve  either  party  from 
any  of  its  consequences.  T^ut  where  the  contract  neither  involves  moral  turpi- 
tude nor  violates  any  general  principle  of  public  policy,  and  money  or  property 
has  been  advanced  upon  it,  relief  will  be  granted  to  the  party  making  the  ad- 
vance: I.  Where  he  is  not  in  pari  delicto:  or,  2.  In  some  cases  where  he 
elects  to  disaffirm  the  contract  while  it  remains  executory.  In  cases  belong- 
ing to  the  first  of  these  classes,  it  is  of  no  importance  whether  the  contract 
ha.s  been  executed  or  not ;  and  in  those  belonging  to  the  second,  it  is  equally 
unimportant  that  the  parties  are  in  pari  delicto." 


ILLEGAL    CONTRACTS.  2I3 

sade  V.  White,  7  T.  R,  535.  The  case  of  Yates  v.  Footc,  12  Johns. 
I,  has  been  cited  for  the  defendant,  where  it  was  held  that  after 
the  event  has  happened  no  action  will  lie  by  the  loser  against  the 
stakeholder,  upon  notice  and  demand,  while  the  money  remains  in 
his  hands.  And  in  McKcon  v.  Caherty,  3  Wend.  494,  the  law  is 
stated  to  have  been  thus  settled,  by  the  case  of  Yates  v.  Foote. 
That  was  a  decision  of  the  court  for  the  correction  of  errors,  fifteen 
to  six,  against  the  unanimous  opinion  of  the  Supreme  Court,  deliv- 
ered by  Chief  Justice  Kent.  It  was  one  of  five  cases  depending 
upon  the  same  facts  and  principles,  in  one  of  which,  Vischer  v. 
Yates,  II  Johns.  23,  the  judgment  of  the  Supreme  Court  is  reported. 
Kent,  C.  J.,  there  reviews  the  English  cases,  and  he  thence  deduces 
that  an  action  may  be  maintained  against  the  stakeholder,  upon 
notice  and  demand,  before  he  pays  over  the  money,  as  well  after  as 
before  the  happening  of  the  event.  To  this  result,  as  sound  and  cor- 
rect, is  added  the  undivided  opinion  of  the  Supreme  Court  of  New 
York.  The  rule,  that  no  action  lies  where  the  parties  are  in  pari 
delicto,  was  interposed.  The  learned  Chief  Justice  says,  "this  ob- 
jection is  applied  exclusively  to  the  suit  against  the  principal  or  win- 
ner; and  there  is  no  instance  in  which  it  has  been  used  as  a  pro- 
tection to  the  intermediate  stakeholder,  who,  though  an  agent  in  the 
transaction,  is  no  party  in  interest  to  the  illegal  contract."  It  best 
comports  with  public  policy,  to  arrest  the  illegal  proceeding  before 
it  is  consummated,  and,  in  our  judgment,  the  opinion  of  the  Supreme 
Court  is  better  sustained,  upon  principle  and  authority,  than  that  of 
the  court  of  errors.  The  non-suit,  ordered  by  the  court  below,  is 
not  warranted  by  the  law  of  the  case. 

Exceptions  sustained.^ 


MORGAN  V.  BEAUMONT. 

121  Mass.  7. — 1876. 

Contract  for  money  had  and  received.  The  money  was  handed 
to  the  defendant  to  hold  as  stakeholder,  on  a  wager  as  to  the  result 
of  a  horse  race. 

Gray,  C.  J. — The  wager  was  illegal,  the  winner  had  no  right  to 
the  money,  the  stakeholder  was  a  mere  depositary,  and  the  plaintiff, 
having  demanded  the  money  before  it  was  paid  over,  was  not  in 
pari  delicto,  and  was  entitled  to  recover  his  deposit  from  the  stake- 
holder, whether  it  was  still  in  his  hands  or  had  been  paid  by  him  to 

^In  Bernard  v.  Taylor,  23  Ore.  416  (1893),  plaintiff  deposited  with  de- 
fendant $560,  for  the  benefit  of  Grant,  who  was  to  compete  with  Anderson 
in  a  foot  race  which  was  known  by  plaintiff  and  the  rest  of  the  above  persons 
to  be  a  "bogus"  race  for  the  purpose  of  "roping  in"  somebody.  Before  the 
time  appointed  for  the  race,  plaintiff  demanded  back  his  money,  defendant  re- 
fused, and  plaintiff  sued  and  was  allowed  to  recover  it. 


214  BENEFITS    CONFERRED    UNDER    CONTRACT. 

the  winner  after  notice  from  the  plaintiff  not  to  do  so.  The  fact, 
insisted  upon  at  the  argument,  that  the  defendant  knew  of  and 
promoted  the  illegal  wager,  affords  him  no  protection.  White  v. 
Franklin  Bank,  22  Pick.  181,  189;  McKee  v.  Manice,  11  Cush.  357; 
Love  V.  Harvey,  114  Mass.  80;  Fisher  v.  Hildreth,  117  Mass.  558. 
*     *     *     *  Judgment  for  the  plaintiff  affirmed. 


KNOWLTON  V,  CONGRESS  &  EMPIRE  SPRING  CO. 

57  N.  Y.  518.-1874. 

Defendant  was  a  corporation.  Its  trustees  passed  a  resolution 
to  increase  its  capital  stock,  certificates  to  be  issued  as  for  full-paid 
stock  when  80  per  cent,  of  the  subscription  was  paid.  A  subscrip- 
tion agreement  binding  the  subscribers  to  take  stock  and  pay  $80 
per  share  of  $100,  in  instalments  as  called  for,  and  on  failure  to  sub- 
mit to  forfeiture,  was  prepared  and  signed  by  S.  on  behalf  of  plain- 
tiff*. Plaintiff  was  trustee  of  defendant,  was  active  in  devising  the 
scheme  and  in  procuring  subscribers.  He  paid  in  20  per  cent,  on  said 
subscription,  but  did  not  pay  subsequent  calls,  and  in  consequence,  by 
resolution  of  the  board  of  trustees,  the  stock  was  declared  forfeited. 
Subsequently,  at  a  meeting  of  the  stockholders,  it  was  resolved  to  re- 
duce the  stock  to  its  original  amount,  to  settle  with  the  subscribers 
for  the  new  stock  and  to  retire  the  same.  Bonds  of  the  company  were 
issued  and  delivered  for  that  purpose ;  none  v/ere  tendered  to  or  de- 
manded by  plaintiff.  This  is  an  action  brought  by  him  to  recover  the 
amount  paid.  Judgment  in  favor  of  plaintiff,  entered  on  the  report  of 
a  referee. 

The  report  of  the  referee,  substantially,  finds  that  he  considered 
any  plan  or  scheme  by  which  the  actual  amount  of  the  capital  of 
company,  incorporated  under  the  act  passed  February  17,  1848,  en- 
titled, "An  act  to  authorize  the  formation  of  corporations  for  manu- 
facturing, mining,  mechanical  or  chemical  purposes"  (being  the  act 
as  subsequently  extended  in  its  objects,  under  which  the  defendant 
was  incorporated),  is  made  less  than  the  nominal  amount  thereof, 
whether  as  originally  fixed  or  subsequently  increased,  violates  the 
spirit  and  policy  of  the  law,  if  not  the  express  provisions  thereof 
applicable  to  the  subject,  from  its  tendency,  when  carried  out,  to  de- 
ceive the  public  and  prejudice  the  stockholders  not  assenting  to  it; 
and  he  came  to  the  conclusion,  upon  facts  then  disclosed  in  the 
case,  that  the  scheme  for  the  increase  of  the  capital  stock  of  the 
defendant  was  constructively  fraudulent  as  to  the  public  and  as  to 
all  stockholders  not  assenting  thereto,  and  therefore  illegal.  He  then 
concluded  that  the  plaintiff,  virtually,  receded  from  the  contract,  by 
refusing  to  pay  calls ;  that  it  was  then  still  executory,  and  that  the 
plaintiff  might  repudiate  it  and  maintain  an  action  for  the  money  paid 


ILLEGAL    CONTRACTS. 


-^J 


under  it.  Those  views  were  adopted  by  him  in  his  opinion,  g;ivcn 
on  rendering-  his  final  report  and  decision ;  and  he  therein  further 
states  that  the  evidence  fails  to  establish  an  actual  intent  on  the  part 
of  the  defendant  to  defraud  ;  and  he  also  exonerates  the  plaintiff  from 
intentional  fraud  in  his  action  in  the  advancement  of  the  scheme. 

Reynolds,  C. — *  '•'  *  *  I  do  not  think  it  of  much  consequence 
to  the  present  question  that  the  defendant  abandoned  the  effort  to 
increase  its  stock  as  originally  proposed  by  the  plaintiff.  The  in- 
firmity, if  there  be  any  in  the  plaintiff's  case,  is,  that  he  was  a  party 
to  an  illegal  transaction,  and  the  money  sought  to  be  recovered  was 
connected  with  the  illegality,  and  intended  to  aid  in  promoting-  the 
fraudulent  enterprise.  It  is  urged,  on  behalf  of  the  plaintiff,  that  he 
was  not  in  pari  delicto;  that  the  corporation  was  the  more  guilty 
party ;  that  he  was  but  one  of  a  number  of  directors  and  did  not  con- 
trol the  action  of  the  company,  and  that  he  repented  in  due  sea- 
son, I  find  it  difficult  to  see  the  force  of  this  argument.  He  was 
one  of  several  officers  of  a  corporation  engaged  in  an  illegal  act,  and 
he  may  be  no  worse  off  in  the  law,  even  if  he  was  the  inventor  of 
the  illegal  scheme,  but  he  was  in  complicity  with  all  his  associates 
in  the  direction  of  the  corporation.  The  invisible  and  intangible  legal 
existence,  called  the  corporation,  had  neither  body,  soul  nor  sense, 
and  in  itself  was  utterly  incapable  of  conceiving  a  fraud  or  doing  an 
illegal  act.  It  could  only  be  moved  to  wrong  by  the  acts  of  its 
managers,  and  if  they  all  concocted  or  connived,  and  sought  to  con- 
summate an  illegal  transaction,  they  all  come  within  the  unbending 
rule  that  every  court  declines  to  give  its  aid,  in  any  form,  to  parties 
thus  conditioned,  either  to  enforce  an  executory  contract  or  disturb 
one  executed.  Such  parties  are  left  in  the  position  they  have  placed 
themselves.  It  is  said  the  plaintiff  repented  in  season.  Repentance 
for  transgression  of  any  kind  is  always  to  be  commended,  but  in 
cases  like  this  the  courts  do  not  accept  it  to  relieve  the  sinner.  If  he 
has  been  concerned  in  an  illegal  enterprise,  abhorred  by  the  law,  and 
parted  with  his  money  on  such  a  hazard,  no  amount  of  repentance 
will  induce  a  court  to  g-ive  its  aid  to  rescue  it  from  the  toils  by  which 
it  is  detained.  The  learned  counsel  for  the  plaintiff  obviously  felt 
the  force  of  this  rule  of  law,  w'hen  he  suggested  that  the  corporation 
was  the  more  guilty  party.  No  guilt  can  be  imputed  to  the  corpora- 
tion save  that  imposed  by  the  plaintiff  and  his  associates.  And, 
again,  it  is  said  that  the  plaintiff  rescinded  his  illegal  contract  and 
was  entitled  to  recover  back  what  he  had  paid.  There  is  no  such 
rule  in  a  case  like  this.  A  party  defrauded  may,  on  the  discovery  of 
the  fraud,  rescind  a  contract  to  recover  back  what  he  has  paid  upon 
it.  But  one  of  several  parties  to  a  fraud,  after  he  has  parted  with  his 
money  to  promote  the  fraudulent  scheme,  may  not,  at  any  time,  re- 
scind and  recover  it  back. 

As  before  suggested,  it  is  very  earnestly  insisted  that  in  this  case 
the  plaintiff's  illegal  contract  remained  executory,  and  that  he  re- 
scinded or  repented  in  due  time  before  it  was  completely  executed, 
and  was  therefore  entitled  to  recover  back  so  much  as  he  had  already 


2l6  BENEFITS    CONFERRED    UNDER    CONTRACT. 

paid  in.  furtherance  of  an  illegal  transaction.  I  am  quite  aware  that 
cases  can  be  found  in  the  books  where  this  distinction  has  been 
acted  upon,  but  they  will  be  found,  on  examination,  mainly  excep- 
tional in  their  character.  In  our  law,  the  general  rule  is,  that  no 
court  will  give  its  aid  to  any  party  engaged  in  an  illegal  transac- 
tion, to  recover  anything  which  has  been  devoted  to  such  a  purpose. 
Where  the  illegal  and  immoral  scheme  has  been  fully  consummated, 
no  one  doubts  the  application  of  the  rule.  It  has  been,  however,  and 
is  now  suggested,  that  if  a  party  only  goes  half  way  and  then  re- 
pents, he  may  have  relief  in  the  courts,  on  the  ground  of  his  re- 
pentance, before  the  eleventh  hour.  This  view  can  only  proceed 
upon  the  ground  that  the  law  indulges  in  some  mathematical  exact- 
ness in  the  degrees  of  criminality,  and  that  the  smaller  sinner  may 
be  saved,  while  the  larger  one  meets  with  a  different  destiny.  It 
therefore  appears  to  me  that,  in  cases  like  the  one  at  bar,  there  can 
be  no  logical  or  legal  distinction  made  between  a  contract  executory 
or  executed,  as  I  think  my  brother,  Lott,  has  shown  by  a  special 
reference  to  adjudged  cases,  which  I  do  not  think  necessary  now  to 
review  or  consider.  The  principle  which  underlies  the  whole  ques- 
tion is,  to  my  mind,  very  apparent. 

We  are  referred  to  cases  where  corporations  have  done  acts,  such 
as  the  making  of  contracts  and  the  issuing  of  bills  as  money,  entirely 
beyond  their  authority,  but  in  fact  prohibited  by  positive  law,  and 
where  a  remedy,  by  third  parties  has  been  had  against  them  in  the 
courts ;  but  they  give  no  support  to  the  plaintiff's  claim  in  this  case, 
for  here  the  illegal  or  guilty  act  of  the  corporation  was  also  the 
illegal  or  guilty  act  of  the  plaintiff,  by  whom,  with  his  associates, 
the  corporation  was  debauched.  The  case  of  Thomas  v.  The  City 
of  Richmond  (12  Wallace  (U.  S.)  349)  was  a  case  where  a  third 
party  had  received  bills,  issued  as  currency  in  violation  of  law,  and 
the  plaintiff  was  not  permitted  to  recover.  Mr.  Justice  Bradley,  in 
that  case,  says  (p.  356)  :  "The  issuing  of  bills  as  a  currency  by  such 
a  corporation,  without  authority,  not  only  contrary  to  positive  law, 
but,  being  tiltra  vires,  is  an  abuse  of  the  public  franchises  which  have 
been  conferred  upon  it ;  and  the  recefiver  of  the  bills,  being  charge- 
able with  notice  of  the  wrong,  is  in  pari  delicto,  with  the  officers, 
and  should  have  no  remedy,  even  for  money  had  and  received,  in 
which  he  has  aided  in  inflicting  the  wrong.  The  protection  of  public 
corporations,  from  such  unauthorized  acts  of  their  officers  and 
agents,  is  a  matter  of  public  policy  in  which  the  whole  community 
is  concerned,  and  those  who  aid  in  such  transactions  must  do  so  at 
their  peril."  It  need  not  be  suggested  with  how  much  greater  force 
this  doctrine  applies  against  one  of  the  guilty  officers  of  the  corpora- 
tion. Without  pursuing  the  subject  further,  T  think  the  judgment 
of  the  court  below  should  be  reversed  and  a  new  trial  granted. 


ILLEGAL   CONTRACTS.  21/ 

[There  was  a  disscntincf  opinion  by  Dwight,  C.  ;^  and  an  opinion 
by  LoTT,  Ch.  C,  in  concurrence  with  that  of  Reynolds,  C,  supra.]- 


THOMPSON  V.  WILLIAMS. 

58  N.  H.  248.— 1878. 

Assumpsit  for  $75,  the  price  of  two  cows  sold  by  the  plaintiff 
to  the  defendant  on  Sunday.  Fifteen  days  after  the  sale  the  plain- 
tiff took  the  cows  from  the  defendant,  claiming  that  the  title  was  not 
to  pass  until  the  price  was  paid.  For  that  taking  the  defendant 
brought  an  action  of  trespass  against  the  plaintiff,  and  recovered  a 
judgment  (the  damages  being  assessed  at  $75)  on  the  ground  (as 
the  record  shows)  that  the  cows  were  the  property  of  the  defendant 
by  virtue  of  the  sale  on  Sunday,  and  the  sale  was  absolute.  That 
judgment  the  plaintiff  has  satisfied. 

The  defendant  moved  for  a  non-suit,  on  the  ground  that  the  sale 
was  prohibited  by  the  Sunday  law.  Gen.  St.  c.  255,  s.  3.  The  court 
denied  the  motion,  and  the  defendant  excepted.  The  plaintiff 
claimed  that  the  Sunday  law  is  not  a  defense  in  this  case,  and  that 
the  defendant,  having  asserted  and  maintained  his  title  under  the 
Sunday  sale  in  the  former  suit,  is  estopped  in  this  action  to  set  up 
the  defense  of  Sabbatical  illegality.    Verdict  for  the  plaintiff. 

*The  dissent  of  Dwight,  C,  is  upon  three  grounds:  i.  That  the  agree- 
ment was  not  illegal  but  merely  void,  because  it  was  "ultra  vircs,^  or  beyond 
the  capacity  of  the  corporation  to  make" ;  2.  That  even  if  illegal  it  was  "ex- 
ecutory," and  "remained  in  part  unexecuted";  3.  That  defendant  "rescinded 
the  whole  scheme,"  "accordingly  there  never  was  any  stock,"  therefore  the 
consideration  wholly  failed  and  hence  plaintiff  must  be  permitted  to  recover. 

"  After  the  foregoing  decision,  the  case  was  removed  to  the  United  States 
Circuit  Court  and,  going  thence  on  writ  of  error  to  the  United  States  Supreme 
Court,  is  reported  sub  nom.  Spring  Co.  v.  Knowlton,  in  103  U.  S.  49  (1880). 
The  federal  Supreme  Court  reached  a  conclusion  contrary  to  that  of  the  New 
York  commission  of  appeals.  Woods,  J.,  saying  (p.  57)  :  "It  does  not  appear 
that  the  steps  necessary,  under  the  law,  to  an  increase  of  stock  were  ever 
taken.  Neither  does  it  appear  that  any  scrip  or  certificates  were  ever  issued 
to  the  subscribers  to  the  new  stock.  So  that  all  that  was  done  amounted  only 
to  a  proposition  by  the  company,  on  the  one  hand,  to  increase  its  stock,  and 
an  agreement  by  Knowlton  to  take  certain  shares  of  the  new  stock  when 
issued,  and  the  payment  by  him  of  an  instalment  of  twenty  per  cent,  thereon. 
There  was  no  performance  of  the  contract  whatever  by  the  company,  and 
only  a  part  performance  by  Knowlton.  Tt  is  to  be  observed  that  the  making 
of  the  illegal  contract  was  malum  prohibitum  and  not  malum  in  sc.  There  is 
no  moral  turpitude  in  such  a  contract,  nor  is  it  of  itself  fraudulent,  however 
much  it  may  afford  facilities  for  fraud.  The  question  presented  is,  therefore, 
whether,  conceding  the  contract  to  be  illegal,  money  paid  by  one  of  the  par- 
ties to  it  in  part  performance  can  be  recovered,  the  other  party  not  having 
performed  the  contract  or  any  part  of  it,  and  both  parties  having  abandoned 
the  illegal  agreement  before  it  was  consummated.  We  think  the  authorities 
sustain  the  affirmative  of  this  proposition." 


2l8  BENEFITS    CONFERRED    UNDER    CONTRACT. 

Smith,  J. — '■-  *  *  *  The  defendant  is  not  estopped  by  the 
judgment  in  the  trespass  suit  from  setting  up  the  Sunday  law  as  a 
defense.  The  maxim,  in  pari  delicto,  etc.,  was  not  estabUshed  for 
the  benefit  of  one  party  or  of  the  other.  The  law  does  not  leave  the 
weaker  at  the  mercy  of  the  stronger,  nor  give  the  vendor  a  remedy 
by  allowing  him  to  retake  the  property  illegally  sold.  It  leaves  the 
parties  where  their  illegal  contract  left  them ;  when  executed,  it  will 
not  assist  the  party  who  has  parted  with  his  money  or  property  to 
recover  it  back ;  when  executory,  it  will  not  compel  performance.  It 
w^ould  not  leave  the  parties  where  their  illegal  contract  left  them  if 
it  did  not  maintain  the  title  acquired  by  the  contract.  Williams  was 
in  possession  of  the  cows,  as  of  his  own  property,  by  the  assent  of 
Thompson.  When  the  latter  retook  them  Williams  was  enabled  to 
maintain  trespass  because  Thompson  could  not  be  heard  to  contro- 
vert his  title.  Smith  v.  Bean,  15  N.  H.  579;  Coburn  v.  Odell,  30 
N.  H.  540,  552.    The  verdict  must  be  set  aside. 

Non-suit. 


BROWN  V.  TIMMANY. 
20  Ohio  81. — 1851. 

Assumpsit.  The  jury  returned  a  verdict  for  defendant.  The 
plaintiff  and  defendant  made  an  agreement,  07i  Sunday,  whereby  the 
defendant  was  to  deliver  to  the  plaintiff  a  yoke  of  oxen  in  exchange 
for  a  colt  of  the  plaintiff  and  five  dollars  "boot-money."  At  the 
time  of  making  the  agreement,  the  plaintiff  paid  to  the  defendant 
the  five  dollars,  and  the  defendant  was  to  bring  the  oxen  to  the 
plaintiff's  house  on  the  next  day  and  take  away  the  colt.  If  he  failed 
to  do  so  he  was  to  forfeit  and  pay  to  the  plaintiff  one  dollar.  The 
date  of  the  contract  is  not  disclosed  in  the  bill  of  exceptions.  The 
defendant  wdiolly  failed  to  fulfill  said  agreement.  He  would  neither 
deliver  the  oxen  nor  receive  the  colt.  This  action  was  brought  to 
recover  back  the  money  paid. 

Spalding,  J. — In  Sellers  v.  Dugan,  18  Ohio  493,  this  court,  with 
one  dissenting  voice,  decided  that  an  ordinary  contract,  made  in  the 
course  of  business,  on  a  Sunday,  is  void,  and  that  no  action  can  be 
sustained  to  recover  damages  for  the  breach  of  such  a  contract. 
The  question  whether  money  paid  on  the  contract  could  be  recovered 
back  in  an  action  of  assumpsit,  was  not  submitted,  much  less  deter- 
mined, in  that  suit.  The  question  is  directly  presented  for  adjudica- 
tion in  the  case  at  bar,  and  wc  have  no  hesitation  in  saying  that  the 
court  of  common  picas  erred  in  its  instructions  to  the  jury.  We  have 
declared  that  a  business  contract,  made  on  Sunday,  is  void.  Neither 
party  will  receive  the  aid  of  the  court,  while  seeking  to  enforce  per- 
formance of  the  agreement,  or  to  recover  damages  for  its  breach. 

Nor  would  we  help  cither  party  to  rescind,  if  the  agreement  was 


ILLEGAL    CONTRACTS.  219 

wholly  executed,   upon   the  principle  applicable   to  parties  in   pari 
delicto. 

Where,  however,  as  in  this  case,  money  had  been  advanced  in 
part  performance  of  a  void  contract,  and  either  party  sees  fit  to  put 
an  end  to  its  further  fulfillment,  the  amount  paid  may  be  recovered 
back,  in  indebitatus  assumpsit,  as  for  money  had  and  received.  In 
the  present  case,  the  agreement  had  never  been  wholly  executed.  The 
plaintifif  paid  to  the  defendant  five  dollars  in  money,  and  the  de- 
fendant agreed  to  deliver  to  the  plaintifif  on  the  next  day,  a  yoke  of 
oxen,  and  to  receive  a  colt  in  exchange.  The  defendant  refuses  to 
deliver  the  oxen,  on  the  ground  that  he  entered  into  the  contract  on 
a  Sunday,  and  it  is  void.  So  far  he  is  sustained  by  the  law.  But 
if  he  repudiates  and  refuses  to  execute  the  agreement,  on  the  ground 
that  it  was  a  business  transaction  on  the  Sabbath,  and  consequently 
void,  upon  what  pretense  of  right  can  he  withhold  from  the  plaintiff 
the  money  that  he  advanced  upon  the  faith  of  that  agreement? 
He  has  put  an  end  to  the  execution  of  the  contract  as  he  had  a  legal 
right  to  do.  He  now  holds  five  dollars  of  the  plaintiff's  money  with- 
out consideration,  and  is,  ex  aequo  et  bono,  under  as  great  obligation 
to  refund  it  as  if  he  had  accidentally  found  it  on  Sunday.  The 
well-settled  rule  of  law  undoubtedly  is,  that  where  money  has  been 
paid  in  pursuance  of  an  illegal  contract  that  remains  executory,  it 
is  recoverable  in  an  action  for  money  had  and  received  to  the  use  of 
the  party  paying  it.    Alitcr,  when  the  agreement  is  executed. 

The  judgment  of  the  common  pleas  is  reversed  with  costs. ^ 


HENTIG  V.  STANIFORTH. 

5  M.  &  S.  (K.  B.)  122.— 1816. 

Lord  Ellenborough,  C.  J. — This  was  an  action  for  money  had 
and  received,  to  recover  back  the  premium  that  had  been  paid  on  a 
policy  of  insurance.  The  cause  was  tried  before  me  at  Guildhall, 
and  the  facts  as  stated  by  the  plaintiffs'  counsel,  and  which  were  ad- 
mitted without  proof,  were  these :  The  policy  was  dated  on  the  20th 
of  November,  and  was  on  goods  at  and  from  Riga  to  Hull.  The 
ship,  which  was  a  Swedish  ship,  was  chartered  for  the  voyage ;  and 
by  the  terms  of  the  charter-party  a  British  license  for  the  voyage 
was  to  be  procured.  On  the  3d  of  September  a  letter  was  written 
and  sent  from  Riga  to  the  agent  of  the  assured  in  England,  direct- 
ing him  to  procure  a  license  and  to  effect  insurance.    The  letter  was 

^In  Troewert  v.  Decker,  51  Wis.  46  (1881),  it  was  held  that  where  money 
was  borrowed  on  Sunday,  with  a  promise  to  repay  it,  the  contract  was  il- 
legal ;  and  that  "the  mere  fact  that  a  person  borrowing  money  on  Sunday 
retains  it  and  converts  it  to  his  own  use,  does  not  raise  an  implied  promise, 
binding  in  law,  and  upon  which  an  action  can  be  maintained." 


220  BENEFITS    CONFERRED    UNDER    CONTRACT, 

delayed  beyond  the  usual  time  by  contrary  winds,  and  was  not  re- 
ceived till  the  5th  of  October.  On  the  7th  of  October  a  license  was 
obtained.  The  ship  sailed  from  Riga  on  the  3d.  It  was  objected, 
that  this  was  an  illegal  voyage,  by  the  stat.  12  Car.  2,  c.  18,  s.  8,  the 
ship  being  Swedish,  and  the  goods  the  produce  of  Russia,  and  that 
the  plaintiff  being  particcps  criminis  could  not  recover  back  the 
premium.  A  verdict  was  taken  for  the  plaintiff,  with  liberty  to  the 
defendant  to  move  to  set  it  aside  and  enter  a  non-suit.  Such  a  mo- 
tion was  accordingly  made,  and  a  rule  to  show  cause  granted,  and 
the  matter  has  been  argued. 

Upon  consideration,  we  think  the  plaintiff  is  entitled  to  recover 
back  the  premium,  on  the  principle  of  the  decision  of  Oom  v.  Bruce, 
12  East  225.  The  objection  is,  that  the  contract  was  illegal,  the  voy- 
age insured  being  for  the  conveyance  of  Russian  commodities  from 
Russia  to  England  in  a  Swedish  ship,  and  so  contrary  to  the  navi- 
gation act,  12  Car.  2,  c.  18,  s.  8 ;  and  that  the  plaintiff  being  particeps 
criminis  cannot  recover  back  the  money  paid  on  the  illegal  consider- 
ation. But  before  the  time  of  this  insurance,  a  statute  had  passed 
enabling  His  Majesty  to  legalize  such  a  voyage  by  license ;  and  in 
fact  a  license  had  been  granted  before  the  policy  was  effected, 
though  not  until  four  days  after  the  ship  sailed,  the  ship  having 
sailed  on  the  3d  of  October,  and  the  license  being  dated  on,  and 
expressly  made  to  be  in  force  from  the  7th  of  that  month.  The  ship 
having  sailed  before  the  license  was  granted,  it  has  been  decided, 
and  rightly  so,  that  the  policy  was  void.  No  risk,  therefore,  was 
ever  incurred  by  the  underwriter,  and  if  he  can  retain  the  premium 
he  will  retain  it  for  nothing.  But  though  the  license  was  not  ac- 
tually obtained  until  the  7th  of  October,  it  was  always  in  the  con- 
templation of  the  parties,  that  a  license  should  be  obtained ;  the 
charter-party  provides  for  it,  and  a  letter  directing  it  to  be  obtained 
was  sent  from  Riga,  on  the  3d  of  September,  which,  according  to 
the  ordinary  course,  might  be  expected  to  have  arrived  in  England 
in  time  for  a  license  to  be  procured  before  the  third  of  October,  the 
day  of  the  ship's  departure.  If  the  license  had  been  obtained  before 
the  ship's  departure,  the  voyage  would  have  been  legal.  The  plain- 
tiff residing  abroad  had  reasonable  ground  to  suppose  that  the 
license  would  be  obtained  before  the  ship  sailed :  he  contemplated  a 
legal  and  not  an  illegal  voyage.  His  agent  in  England  knew  that 
the  license  was  obtained,  but  was  ignorant  of  the  time  of  the  ship's 
departure ;  he  also  contemplated  a  legal  and  not  an  illegal  voyage. 
The  illegality  depended  upon  a  fact,  viz.,  the  posteriority  of  the 
license  to  the  ship's  departure,  which  was  not  known  to  the  parties, 
and  was  contrary  to  the  opinion  and  expectation  that  the  plaintiff 
might  reasonably  entertain.  In  this  respect,  the  present  case  is  in 
principle  the  same  as  Oom  v.  Bruce ;  there  the  illegality  of  the  voy- 
age arose  out  of  the  commencement  of  hostilities  on  the  part  of 
Russia,  which  was  a  fact  unknown  to  the  plaintiffs  when  they  ef- 
fected the  policy.  It  was  urged  in  argument,  for  the  purpose  of  dis- 
tinguishing the  two  cases,  that  here  the  voyage  was  prima  facie 


ILLEGAL   CONTRACTS.  221 

illeg'al,  because  a  license  was  necessary  to  legalize  it.  Rut  there  is 
nothing  of  illegality  apparent  on  the  face  of  the  policy,  and  as 
far  as  the  plaintiffs'  knowledge  of  the  facts,  coupled  with  the  cir- 
cumstance of  the  expected  license,  appears  to  have  extended,  he 
had  a  right  to  suppose  that  the  voyage  would  be  legal :  there  was  no 
illegality  apparent  to  him  or  to  his  agent.  We  think,  therefore,  that 
this  distinction  does  not  exist.  But  the  case  is  plainly  distinguish- 
able from  all  the  cases  cited  on  the  part  of  the  defendant,  wherein 
the  return  of  premium  was  called  in  question.  In  Toulmin  v.  An- 
derson, I  Taunton  227,  no  question  on  the  return  of  premium  was 
ever  made.  In  all  the  other  cases  cited  the  voyages  were  illegal ;  and 
there  was  not  in  any  one  of  them  any  state  of  facts,  either  actually  ex- 
isting or  supposed  to  exist,  that  could  render  it  legal.  In  the  present 
case,  a  state  of  facts  was  supposed  to  exist,  and  reasonably  so  sup- 
posed, under  which,  if  the  expectation  of  the  parties  had  been  realized, 
the  voyage  would  have  been  legal.  Unfortunately  for  the  plaintiff  his 
expectation  was  disappointed,  and  he  lost  the  benefit  of  his  insur- 
ance ;  but  he  contemplated  a  legal  voyage  and  a  legal  contract.  And 
we  think,  therefore,  that  he  is  not  a  party  to  a  violation  of  the  law, 
and  is  entitled  to  recover  back  his  premium,  as  money  paid  without 
any  consideration. 

Rule  to  be  discharged. 


SKINNER  V.  HENDERSON. 
10  Mo.  205. — 1846. 

Scott,  J. — This  was  an  action  of  assumpsit  on  the  general  counts 
brought  by  Skinner  against  Henderson,  in  which  Skinner  submitted 
to  a  non-suit,  and  after  an  unsuccessful  motion  to  set  it  aside,  has 
brought  the  cause  to  this  court.  Henderson,  it  seems,  by  deed,  leased 
to  Skinner  a  right  of  pre-emption  he  possessed  on  the  public  lands, 
for  the  term  of  ninety-nine  years,  for  a  large  sum  of  money.  The  ob- 
ject of  the  lease  was  to  evade  the  act  of  congress  prohibiting  the 
sale  of  a  pre-emption  right  until  the  issuance  of  a  patent  therefor. 
Understanding  afterward  that  such  an  agreement  was  not  valid, 
the  parties  mutually  consented  that  the  lease  should  be  burned, 
which  was  accordingly  done  and  the  contract  was  considered  re- 
scinded by  them.  In  the  meantime  Skinner  had  made  large  pay- 
ments to  Henderson  under  the  lease,  and  this  suit  was  brought  to 
recover  them.  On  the  trial  a  copy  of  the  lease  was  offered  in  evi- 
dence, and  several  receipts  for  money  under  the  contract  by  Hen- 
derson ;  all  these  papers  were  excluded  by  the  court,  and  this  ac- 
tion of  the  court  is  the  error  complained  of. 

The  rule  in  respect  of  money  paid  on  illegal  contracts  appears  in 
general  to  be,  that  money  so  advanced  may  be  recovered  in  an  ac- 
tion for  money  had  and  received,  while  the  contract  remains  ex- 


222  BENEFITS    CONFERRED    UNDER    CONTRACT. 

ecutory,  because  a  violation  of  the  law  is  thereby  prevented ;  but  if 
a  contract  be  executed,  it  cannot  be  recovered  back.  When  both 
parties  are  in  pari  delicto,  nidi  or  est  conditio  dcfendentis,  not  be- 
cause he  is  favored  in  law,  but  because  the  plaintiff  must  draw  his 
justice  from  pure  sources.  Buller's  N.  P.  132;  Doug.  470.  Here 
the  contract  was  not  executed,  the  parties  availed  themselves  of  the 
locus  poenitentiac,  and  rescinded  their  bargain,  consequently  the 
money  paid  under  it  may  be  recovered.  It  may  be  remarked  in  re- 
gard to  the  refusal  to  admit  secondary  evidence  of  the  deed,  that 
it  is  by  no  micans  a  matter  of  course  to  permit  a  party  to  give  sec- 
ondary evidence  of  the  contents  of  an  instrument,  although  the  fact 
of  its  destruction  is  clearly  proved.  A  party  who  will  voluntarily, 
and  without  cause,  deprive  himself  of  original  evidence,  will  not  be 
permitted  to  use  the  secondary.  The  deed  being  destroyed  with 
mutual  consent  of  parties,  and  with  a  view  to  rescind  an  unexecuted 
contract  which  they  learned  was  illegal,  the  authorities  will  amply 
sustain  under  such  circumstances  the  introduction  of  secondary  evi- 
dence. Riggs  V.  Taylor,  9  Wheat.  483.  The  evidence  of  the  exe- 
cution of  the  deed  was  sufficient  to  have  permitted  it  to  go  to  the 
jury.  *  *  *  *  Tiie  judgment  will  be  reversed  and  the  cause 
remanded. 


ii.     Par  Delictum. 

HARSE  V.  PEARL  LIFE  ASSURANCE  CO. 

[1904]  I  K.  B.  558. 

In  April,  1889,  a  proposal  was  made  to  the  plaintifif,  by  an  agent 
of  the  defendant  insurance  company,  that  he  should  effect  an  in- 
surance with  the  defendants  upon  t'lie  life  of  a  relative.  The  plain- 
tiff agreed  to  insure  the  life  of  his  mother,  who  was  residing  with 
him  as  his  housekeeper,  and  to  whom  he  made  a  money  allowance. 
In  the  proposal  form  the  pecuniary  interest  in  the  life  insured  was 
stated  to  be,  "Son  for  funeral  expenses."  The  plaintiff's  father  was 
alive,  but  he  was  paralyzed  and  unable  to  earn  any  money,  and 
would  not  be  in  a  position,  in  the  event  of  his  wife  predeceasing 
him,  to  pay  for  her  funeral  expenses.  Subsequently  the  plaintiff 
was  induced  by  the  defendants'  agent  to  effect  a  second  policy  with 
the  defendants  upon  his  mother's  life.  The  proposal  form  of  that 
policy  was  signed  with  the  name  of  the  mother,  but  the  plaintiff 
stated  that  the  policy  was  effected  for  his  benefit,  and  the  premiums 
were  paid  by  him.  The  mother,  in  giving  her  evidence,  denied  that 
she  had  signed  the  proposal  form. 

In  1902  the  plaintiff,  being  informed  that  the  policies  were  void 
for  want  of  insurable  interest,  brought  the  action  in  the  Oxford 
county  court  to  recover  the  premiums  paid  by  him  under  the  two 


ILLEGAL    COXTRACTS.  223 

policies  dnrinp;'  the  preceding;'  twelve  years,  amountine;'  to  £43  8s. 
At  the  trial  the  judge  left  the  following  questions  to  the  jury: 
( I )  "Had  the  person,  for  whose  benefit  the  assurance  was  really 
made,  a  real  pecuniary  interest  under  either  policy? — Yes.  (2)  Did 
the  agent  in  either  case  make  a  statement  which  was  false  in  fact? 
If  so,  what  was  it? — No.  (3)  Did  the  agent  in  either  case  know 
that  what  he  was  saying  was  untrue? — No.  (4)  Was  either  policy, 
or  were  both,  taken  out  in  consequence  of  what  the  agent  had  said  ? — 
Yes.  (5)  Did  the  agent  in  either  case  represent  that  the  policy 
had  been  a  good  one? — Yes.  (6)  Were  the  agents  in  what  they 
did,  or  was  either  of  them,  guilty  of  any  fraud,  and,  if  so,  in  what 
respect? — No."  The  jury  were  unable  to  agree  whether  the  mother 
signed  the  proposal  form.  The  county  court  judge  held  as  a  mat- 
ter of  law  that  under  the  circumstances  the  fact  that  the  plaintiff 
would  morally  be  bound  to  pay  for  his  mother's  funeral  expenses, 
failing  the  ability  of  his  father  to  pay  for  them,  gave  rise  to  a  suffi- 
cient pecuniary  interest  to  satisfy  the  statute  of  14  Geo.  3,  c.  48 ; 
that  the  first  policy  was  consequently  good,  and  the  premiums  paid 
under  it  could  not  be  recovered  back.  He  also  held  with  regard  to 
both  policies  that,  even  if  they  were  void  for  want  of  insurable 
interest,  the  premiums  could  not  be  recovered  back,  for  the  parties 
were  in  pari  delicto,  the  representation  of  the  agent  as  to  the  validity 
of  the  policies  being  a  representation  as  to  a  matter  of  law,  and 
having  been  innocently  made.  He  accordingly  gave  judgment  for 
the  defendants.   The  plaintiff  appealed. 

The  Divisional  court  held  that  the  fact  that  a  person  will  at  some 
future  date  be  under  a  moral,  though  not  a  legal,  obligation  to  pay 
for  the  funeral  expenses  of  a  relative  is  not  sufficient  to  create  an 
insurable  interest  in  that  relative's  life ;  and,  as  to  both  policies, 
that,  as  the  plaintiff  was  entitled  to  assume  that  the  defendants' 
agent  would  have  a  knowledge  of  insurance  law,  the  parties  were 
not  in  pari  delicto,  and  the  premiums  could  consequently  be  recov- 
ered back. 

Judgment  was  accordingly  given  for  the  plaintiff.^  The  defend- 
ants appealed. 

RoMER,  L.  J. — *  *  *  *  Assuming  that  the  two  policies  were 
void  because  they  were  illegal,  it  is  clear  that  the  plaintiff  cannot 
recover  the  premiums  that  he  has  paid  unless  he  can  make  out  that 
he  is  not  in  pari  delicto  with  the  defendant  company.  Can  he  be 
said  to  have  established  that  position  ?  To  do  this,  reliance  is  placed 
on  the  statements  made  by  the  agent  of  the  company.  In  my  opinion 
there  was  no  misstatement  of  fact,  and  it  is  further  clear  that  there 
was  no  fraud — that  it  was  not  a  case  of  oppression  or  duress,  and 
that  it  was  not  a  case  of  an  advantage  taken  by  a  clever  man  over 
an  ignorant  one.  The  agent,  like  the  plaintiff,  had  forgotten  or  mis- 
taken the  law.  The  finding  of  the  jury  amounts  to  this — that  the 
agent  had  the  belief  that  the  policies  were  good.    Unless  it  can  be 

* [1903]  2  K.  B.  92. 


(^4/  BENEFITS    CONFERRED    UNDER   CONTRACT. 

said  that  the  statements  made  by  the  agent  put  the  defendants  in 
a  worse  position  than  the  plaintiff,  the  parties  were  on  an  equal 
footing  with  regard  to  the  transaction,  I  do  not  think  the  statement 
had  that  effect,  nor  do  I  think  that  agents  of  insurance  companies 
must  be  treated  as  under  a  greater  obligation  to  know  the  law  than 
ordinary  persons  whom  they  approach  in  order  to  effect  insurances. 
It  appears  to  me  that  the  parties  must  be  taken  to  have  been  in  pan 
delicto,  and  that  the  company  cannot  stand  in  a  worse  position  than 
their  agent.   I  agree,  therefore,  that  the  appeal  should  be  allowed. 

Appeal  allowed. 
[There  was  also  a  concurring  opinion  by  Collins,  M.  R.  ;  Mat- 
thew, L.  J.,  concurred,  without  opinion.]^ 


AMERICAN  MUTUAL  LIFE  INSURANCE  CO.  v.  BERTRAM. 

70  N.  E.  258  (Ind.  Supreme  Ct.) — 1904. 

The  appellant  company  issued  a  policy  to  Stiles  upon  the  life  of 
Mrs.  Ellsworth.  Stiles  had  no  insurable  interest  in  her  life,  and  she 
did  not  consent  to  the  issuing  of  the  policy.  These  circumstances 
made  the  policy  illegal  both  at  common  law  and  by  statute.  The 
agent  of  the  company,  to  whom  all  the  circumstances  were  known, 
induced  plaintiff  (appellee),  who  had  no  insurable  interest  in  the 
life  of  Mrs.  Ellsworth,  to  take  an  assignment  of  the  policy  from 
Stiles.  Thereafter  plaintiff  paid  the  assessments  upon  the  policy 
until  October,  1897,  when  and  afterward  the  company  refused  the 
plaintiff's  tender  of  assessments.  Plaintiff  later  demanded  back  the 
sums  plaintiff  had  previously  paid  to  the  company,  and  the  demand 
being  refused,  brought  this  action  against  the  company. 

DowLiNG,  J. — *  *  *  *  The  present  suit  is  not  brought  to  en- 
force the  illegal  contract  of  insurance,  or  any  right  arising  out  of  it. 
The  appellee  seeks  only  to  recover  from  the  appellant  moneys  paid 
by  her  to  it  without  any  consideration  whatever.  For,  as  the  policy 
on  the  life  of  Mrs.  Ellsworth  was  void  from  its  inception,  the  ap- 
pellant never  incurred  any  risk,  and  the  appellee  never  could  have 
derived  any  benefit  from  it.  At  the  time  of  the  assignment  of  the 
policy,  and  immediately  previous  thereto,  Gusten,  acting  as  the 
agent  of  the  appellant,  and  knowing  all  the  facts  which  rendered  the 

^In  Duval  v.  Wellman,  124  N.  Y.  156  (1891),  a  widow  contracted  with  a 
broker  who  conducted  a  matrimonial  bureau,  to  procure  her  a  husband.  The 
court  said :  "What  influence  was  exerted  upon  the  mind  of  the  widow  by  the 
mere  fact  of  the  existence  of  such  a  place,  to  which  resort  could  be  had  can- 
not, of  course,  appear  except  by  inference.  Rut  if  the  evidence  was  not  suffi- 
ciently stronp  to  hold  as  a  question  of  law  that  the  parties  were  not  in  pari 
delicto,  it  at  least  presented  a  mixed  question  of  law  and  fact  for  the  jury." 
Further  as  to  parties  not  ]w{n^  in  pari  delicto,  see  cases  post,  p.  509,  on 
the  recovery  of  money  paid  as  usurious  interest. 


ILLEGAL    CONTRACTS,  225 

policy  void,  for  the  purpose  of  inducing-  the  appellee  to  take  an  as- 
sig-nment  of  the  policy,  falsely  and  fraudulently  represented  to  her 
that  the  policy  was  valid,  that  she  would  be  entitled  to  recover  pay- 
ment thereunder  in  case  of  loss,  and  that  the  assignment  would  be 
a  good  investment  for  her.  The  appellee,  who  was  a  woman,  be- 
lieved these  representations,  and  was  induced  by  them  to  take  an 
assignment  of  the  policy  from  Stiles,  and  to  reimburse  him  for  his 
entire  outlay  up  to  that  time.  She  also  agreed  to  pay  all  future 
premiums  and  assessments.  Within  two  months  after  the  assign- 
ment was  made,  and  when  she  had  paid  a  comparatively  small 
amount  on  the  policy,  Barney,  the  vice-president  and  treasurer  of 
the  appellant,  acting  for  it,  visited  the  appellee  at  her  home,  and, 
wdien  told  by  her  what  Gusten  had  said  to  her,  with  a  full  knowl- 
edge of  the  facts,  also  falsely  represented  to  the  appellee  that  the 
policy  was  perfectly  right,  and  advised  her  to  go  on  and  keep  her 
dues  paid  up.  Relying  on  these  false  statements,  the  appellee  paid 
to  the  appellant  premiums  and  assessments  on  the  void  policy  to 
the  amount  of  $1,574.  It  cannot  be  said  that  the  parties  to  this  trans- 
action were  in  pari  delicto,  or  that  the  appellant  ought,  in  good  con- 
science, to  retain  the  moneys  paid  to  it  by  the  appellee.  The  repre- 
sentations made  to  the  appellee  by  the  officers  and  agents  of  the 
company — one  of  them  being  its  vice-president  and  treasurer — were 
calculated  to  impose  upon  and  mislead  any  one  contemplating  the 
purchase  of  a  policy  previously  issued  by  the  company.  The  parties 
did  not  stand  upon  an  equal  footing,  and  the  officers  and  agents 
making  the  false  representations  to  the  appellee  had  every  advantage 
over  her  which  their  special  knowledge  of  the  facts  of  the  case,  and 
of  the  law  of  insurance  applicable  to  their  company,  could  give.  We 
think,  too,  that  these  representations  that  the  policy  was  valid  and 
would  be  paid  were  equivalent  to  a  statement  that  it  had  been  is- 
sued with  the  knowledge  and  consent  of  Mrs.  Ellsworth,  and  that 
Stiles  had  such  an  interest  in  her  life,  as  creditor  or  otherwise,  as 
authorized  him  to  take  it  out,  so  that  the  mistake  of  the  appellee, 
occasioned  by  the  fraudulent  representations  of  the  appellant's  of- 
ficers and  agents,  may  be  fairly  regarded  a  mistake  of  fact  as  well 
as  of  law.  The  direct  result  of  this  mistake  was  that  the  appellee 
assumed  obligations  to  pay  the  premiums  and  assessments  on  the 
policy,  and  that  she  parted  with  her  money  in  discharging  them. 

In  this  connection,  the  fact  is  not  to  be  overlooked  that  section  9 
of  the  act  of  1883  makes  it  a  criminal  offense  for  any  person  to  se- 
cure a  policy  on  the  life  of  another  without  his  knowledge  or  con- 
sent only  when  such  act  is  done  knowingly.  The  court  expressly 
found  that,  in  taking  the  assignment  of  the  policy,  the  appellee  was 
ignorant  of  the  facts  which  rendered  it  void. 

Our  conclusion  upon  this  branch  of  the  case  is  that  the  appellant 
cannot,   in  good  conscience,  be  permitted  to  retain  the  premiums 
and  assessments  paid  to  it  by  the  appellee,  and  that  she  has  the  right 
to  recover  the  same  in  this  action. 
Woodruff's  Cases — 15 


(226^;  BENEFITS    CONFERRED    UNDER    CONTRACT. 

A  distinction  between  a  mistake  of  law,  affectinj^  mere  private 
rights,  and  such  a  mistake  when  the  transaction  is  ihegal  by  statute 
or  is  against  pubHc  poHcy,  may  exist,  as  contended  for  by  counsel 
for  appellant ;  but,  giving  to  this  distinction  its  fullest  effect,  it  could 
not,  under  the  circumstances  of  this  case,  as  shown  by  the  special 
finding,  defeat  the  appellee's  right  to  recover  the  premiums  and  as- 
sessments paid  by  her.  She  did  not  take  out  the  policy.  She  vio- 
lated no  statute.  She  knowingly  did  no  act  prohibited  by  law  or  by 
public  policy.  She  has  not  attempted  to  enforce  the  illegal  contract, 
or  make  any  claim  under  it.  She  admits  that  she  has  no  claim 
against  the  appellant  upon  the  policy.  While  she  must  give  up  the 
insurance  upon  the  life  of  Mrs.  Ellsworth,  because  the  contract  was 
void,  it  is  equally  necessary  that  the  appellant  should  surrender  the 
money  it  has  received  from  her  without  right,  without  consideration, 
and  solely  through  the  fraudulent  misrepresentations  of  its  of- 
ficers.    *     *     *     *i 


iii.     Principal  and  Agent. 
SMITH  ET  AL.  v.  BLACHLEY. 

i88  Pa.  St.  550.— 1898. 

Assumpsit  to  recover  money  had  and  received. 

From  a  judgment  for  defendant,  plaintiffs  appeal. 

Dean,  J. — Blachley,  the  defendant,  a  physician,  practiced  his  pro- 
fession in  the  years  1888  and  1889  in  Morris  township,  Washing- 
ton county.  In  the  adjoining  township  lived  Joseph  Beabout,  farmer, 
his  wife,  and  daughter  Alice,  the  latter  a  single  woman ;  also,  John 
McCullough,  farmer,  his  w^fe  and  son.  Blachley  was  at  times  called 
in  as  a  physician  to  both  families,  where  they  lived  in  the  country, 
about  three  miles  apart,  while  the  physician's  office  was  about  five 
miles  from  both.  In  February,  1887,  Blachley  was  called  in  to  at- 
tend Alice,  the  daughter  of  Beabout,  in  an  illness  which  he  said 
was  the  result  of  a  criminal  abortion.  About  February  or  March, 
1888,  after  she  was  restored  to  health,  he  called  upon  McCullough, 
and  soon  after  upon  Beabout,  and  represented  to  them  that  the 
Humane  Society  of  Pittslnirgh  was  about  to  institute  a  criminal 
])rosecution  against  the  members  of  both  families  for  procuring  the 
abortion,  and  suggested  to  them  that  he  was  in  conference  with  the 
agent  of  the  society,  and  that  the  matter  might  through  him  be 
hushed  up  by  their  paying  over  to  him  the  sum  of  $3,000,  which 
he  would  give  to  the  agent  to  stop  further  inquiries.  Several  inter- 
views were  subsequently  had,  in  which  the  representations  were  re- 
peated.   He  dwelt  largely  on  the  disgrace  which  such  a  prosecution 

*  Compare  I-'ishcr  v.  Ins.  Co.,  160  Mass.  386  (1894). 


ILLEGAL    CONTRACTS.  227 

would  brin^  on  both  families,  and  further  offered  to  assist  them  in 
obtaining  the  money  through  a  bank  in  the  town  of  Washington.  On 
the  15th  of  May  following,  Beabout  and  McCullough  went  to  Wash- 
ington, met  Blachley,  got  the  money  from  the  bank,  and  paid  it 
over  to  him.  He  told  them  the  agent  of  the  society  had  not  yet  ar- 
rived, but,  when  he  came,  he  (Blachley)  would  pay  the  money  to 
him,  and  take  his  receipt.  Afterward  he  advised  them  frequently 
to  keep  quiet  concerning  the  matter ;  to  tell  no  one ;  not  to  employ 
counsel  or  advise  with  others,  or  trouble  might  result.  Deterred  by 
this  advice  and  caution,  they  made  no  inquiries  until  a  short  time 
before  this  suit  was  brought,  i6th  of  November,  1895.  Then  Mc- 
Cullough (Beabout  having  died  in  the  meantime)  discovered  that  no 
prosecution  had  been  contemplated  by  the  Humane  Society,  and,  so 
far  as  could  be  discovered,  it  had  neither  knowledge  of  nor  author- 
ity to  institute  such  prosecution ;  further,  that  Blachley  had  pocketed 
the  money,  and  still  retained  it ;  that  the  whole  story  narrated  by 
him,  from  beginning  to  end,  was  a  tissue  of  falsehoods,  concocted 
to  extort  money  from  them.  The  plaintiff  offered  ample  evidence 
tending  to  establish  these  facts.  As  the  court  below  entered  a  com- 
pulsory nonsuit,  we  must  consider  them,  for  the  purpose  of  review, 
as  fully  proven. 

The  defendant,  in  addition  to  non-assumpsit,  pleaded  the  statute 
of  limitations.  The  court  below  sustained  the  latter  plea,  saying: 
"Under  the  circumstances,  their  [the  plaintiffs']  right  of  action 
against  Blachley  accrued,  and  the  statute  of  limitations  began  to 
run  as  soon  as  the  money  was  paid  to  him.  They  cannot  be  heard 
to  say  that  he  committed  a  fraud  upon  them  by  failing  to  consum- 
mate an  arrangement  which  was  in  itself  a  fraud  upon  the  adminis- 
tration of  justice.  The  plaintiffs  are  the  parties  who,  to  maintain 
their  action,  are  compelled  to  uncover  and  invoke  the  aid  of  the  cor- 
rupt agreement.  This  being  the  case,  they  cannot  profit  by  it,  either 
directly,  as  the  foundation  of  an  action,  or  by  using  it  to  toll  the  stat- 
ute." Is  this  conclusion  warranted  by  the  facts?  It  is  the  policy  of 
the  law  to  leave  parties  to  an  illegal  transaction  where  it  finds  them, 
by  refusing  relief  to  either  party.  Assuming,  what  is  not  proved, 
that  the  crime  of  abortion  was  committed,  and  that  those  who  par- 
ticipated in  procuring  it  were  the  six  members  of  the  two  families, 
and  that  the  parties  on  the  one  side  to  the  composition  of  the  crime 
were  the  heads  of  the  two  families,  Beabout  and  McCullough,  where 
is  the  other  party?  Blachley  was  not  the  prosecutor,  and  did  not 
pretend  to  be.  According  to  his  own  statement,  he  was  their  physi- 
cian, friend  and  adviser.  He  urged  them  to  stifle  the  prosecution  by 
paying  money  to  the  Humane  Society,  the  pretended  prosecutor, 
the  other  party  to  the  composition.  He  was  the  mere  agent  of  the 
Beabouts  and  McCulloughs.  Assume,  then,  as  plaintiffs  allege  and 
defendant  admits,  that  he  was  their  agent  to  carry  the  monev  to  the 
society ;  and  assume,  further,  that  he  was  lying  all  the  time  to  them ; 
that,  in  fact,  there  was  no  such  prosecutor ;  then  the  offense  was 
impossible  of  commission,  for  want  of  parties.    This  leaves  Blach- 


228  BENEFITS    CONFERRED    UNDER   CONTRACT. 

ley  in  the  position  of  a  mere  blackmailer,  who  has  extorted  money 
from  his  patients,  from  those  who  confided  in  him,  and  whose  friend 
he  pretended  to  be,  by  falsehoods  which  operated  on  their  fears, 
and  leaves  them  in  the  position  of  having  given  money  to  their 
agent  and  supposed  friend  to  be  used  by  him  in  compounding  a 
crime,  that  they  and  their  families  might  be  saved  from  scandal. 
What  is  the  policy  of  the  law  as  to  the  relation  thus  assumed  by 
Blachley,  the  agent,  toward  these  plaintiffs,  his  principals?  It  is 
to  exact  from  such  agent  the  most  unflinching  fidelity  to  his  prin- 
cipals. It  abhors  any  unfair  dealing,  treachery,  or  overreaching. 
The  same  rule  governs  as  between  master  and  servant,  client  and 
counsel,  physician  and  patient.  The  relation  is  one  of  trust  and 
confidence.  They  do  not  deal  at  arm's  length.  The  principal  is  in 
the  power  of  the  agent.  He  is  helpless  against  wrong.  May  this 
confidant,  by  falsehood,  entrap  his  principal  into  an  illegal  intent, 
get  possession  of  his  property  or  money,  and  then  claim  exemption 
from  restitution  by  pleading  that  his  principals  intended  an  illegal 
act?  We  can  conceive  of  nothing  more  destructive  of  morals  in 
these  relations  than  to  hold  such  a  rule  applicable  to  the  facts  of 
the  case  before  us.  Such  an  application  would  be  a  license  to  agents 
and  those  occupying  confidential  relations  to  plunder  their  principals. 
We  have  no  authority  in  this  state  directly  to  the  point  one  way 
or  the  other.  Quite  a  number  in  other  states  and  in  England  sus- 
tain the  view  we  have  taken.  In  Evans  v.  Trenton,  24  N.  J.  Law 
764,  Evans  had  been  treasurer  of  the  city.  He  sought  to  retain  $500 
of  the  city's  money  in  addition  to  his  salary,  out  of  a  fund  realized 
from  the  issue  of  currency  to  raise  funds  for  the  city.  The  extra 
services  were  performed  in  this  transaction,  which  was  in  violation 
of  the  banking  laws  of  the  state.  When  suit  was  brought  against 
him,  he  set  up  the  illegality  of  the  transaction  as  a  defense.  The 
court  held :  "The  mere  agent  to  an  illegal  transaction  cannot  set 
up  the  illegality  of  the  transaction  in  a  suit  by  his  principal  to  re- 
cover money  that  has  been  paid  to  such  agent  for  his  principal  on 
account  of  the  illegal  transaction.  This  defense  can  only  be  set  up 
by  a  party  to  the  illegal  transaction."  In  Baldwin  v.  Potter,  46  Vt. 
402,  Baldwin  employed  Potter  to  make  sales  of  candy  by  a  scheme 
which  was  violative  of  the  law  prohibiting  lotteries.  In  suit  by  the 
principal  against  the  agent  for  the  money  so  received,  the  agent 
pleaded  the  illegality  of  the  transaction  by  which  he  obtained  the 
money.  It  was  held  that  if  the  suit  had  been  between  the  plaintiff 
and  the  purchaser  of  the  candies,  the  parties  to  the  illegal  contract, 
it  could  not  have  been  maintained ;  and  then  the  court  says :  "But 
the  defendant  [the  agent]  insists  that,  'inasmuch  as  the  plaintiff 
could  not  have  enforced  the  contract  of  sale  as  between  himsdlf  and 
the  purchaser,  therefore,  as  the  purchaser  has  performed  the  con- 
tract, by  paying  the  money  to  the  plaintiff  through  me  as  their  agent, 
I  can  now  set  up  the  illegality  of  the  contract  of  sale  to  defeat  the 
action  brought  to  enforce  a  contract  on  my  part,  to  pay  the  money 
that  I,  as  agent,  received,  over  to  my  principal.   In  other  words,  be- 


ILLEGAL    CONTRACTS.  229 

cause  my  principal  did  not  receive  the  money  on  a  legal  contract,  I 
am  at  liberty  to  steal  the  money,  appropriate  it  to  my  own  use,  and 
set  my  principal  at  defiance.'  We  think  the  law  is  well  settled  other- 
wise." In  Wood,  Mast.  &  S.,  §  202,  this  is  the  text:  "While  the 
courts  will  not  enforce  an  illegal  contract,  yet  if  a  servant  or  agent 
of  another  has,  in  the  prosecution  of  an  illegal  enterprise  for  his 
master,  received  money  or  other  property  belonging  to  the  master, 
he  is  bound  to  turn  it  over  to  him,  and  cannot  shield  himself  from 
liability  therefor,  upon  the  ground  of  the  illegality  of  the  original 
transaction."  There  are  numerous  authorities  to  the  same  effect.  If, 
then,  the  agent  cannot  successfully  set  up  the  unlawful  contract  to 
enable  him  to  hold  money  received  from  another,  for  his  principal, 
much  less  can  he  set  up  a  pretended  illegal  transaction  to  retain 
money  extorted  from  his  principals  by  the  grossest  falsehood  to 
further  the  mythical  illegal  transaction.  The  money  still  belongs  to 
the  principal,  and  he  can  rightfully  demand  it  as  soon  as  he  discovers 
the  fraudulent  conduct  of  his  agent. 

It  is  argued  that,  even  if  no  crime  was  actually  committed  by 
plaintiffs,  yet  there  was  an  intent  to  commit  one  when  they  paid  the 
money  to  Blachley,  and  hence,  even  if  their  agent  defrauded  them, 
they  cannot  recover  it  back.  As  we  have  noticed,  the  intended  crime 
was  an  impossible  one.  Wlien  conduct  susceptible  of  two  construc- 
tions is  proved,  the  intent  often  determines  its  criminality ;  but  an 
intent  not  carried  out  by  an  act,  or  which  is  impossible  of  execution 
by  an  act,  is  not  punishable.  The  law  takes  no  cognizance  of  an  in- 
tent existing  only  in  the  mind,  nor  does  it  impose,  as  a  penalty  for 
such  intent,  immunity  to  him  who  has  plundered  one  guilty  of  it. 
"The  illegal  intention  must  be  accompanied  by  an  act  which  is  crimi- 
nal or  prohibited  by  law,  in  order  to  make  the  transaction  illegal." 
I  Bish.  Cr.  Law  204  ct  scq. 

As  to  the  plea  of  the  statute  of  limitations,  it  will  not  screen  de- 
fendant from  liability  if  the  suits  were  brought  within  six  years  of 
the  discovery  of  the  fraud.  There  was  ample  evidence,  if  believed 
by  the  jury,  that  defendant  had,  by  systematic  falsehood  and  arti- 
fice, not  only  concealed  the  fraud,  but  for  a  long  time  had  deterred 
his  employers  from  inquiry.  Under  such  circumstances,  the  plea 
will  not  avail  him.  The  judgment  is  reversed,  and  a  procedendo 
awarded.^ 

^Compare  Portsmouth  Brewing  Co., v.  Mudge,  68  N.  H.  462  (1896). 

In  McMullen  v.  Hoffman,  174  U.  S.  62g  (1899),  in  an  opinion  containing 
an  exhaustive  review  of  the  cases,  the  court  says  (p.  660)  :  "Where  A  claims 
money  from  B,  ahhough  due  upon  an  illegal  contract,  and  B  acknowledges 
the  obligation  and  waives  the  defense  of  illegality  and  pays  the  money  to  a 
third  party  upon  his  promise  to  pay  it  to  A,  the  third  party  cannot  success- 
fully defend  an  action  brought  by  A  to  recover  the  money  by  alleging  that 
the  original  contract  between  A  and  B  was  illegal.  This  is  the  principle  de- 
cided, and  we  think  correctly  decided,  in  the  cases  cited.  It  was  certainly 
no  business  of  the  third  oarty  to  inquire  into  the  reasons  which  impelled 
the  person  to  give  him  the  money  to  pay  to  the  plaintiff.  That  was  a  matter 
between  those  parties,  and  if  the  party  from  whom  the  mone}'  was  due  ad- 


^230  BENEFITS    CONFERRED    UNDER    CONTRACT. 

LINESS  V.  HESING. 
44  III.  113. — 1867. 

Mr.  Justice  Lawrence. — Liness  being  desirous  of  procuring-  the 
office  of  clerk  of  the  police  court  in  the  city  of  Chicago,  sent  to 
Hesing  the  following  letter : 

"A.  C.  Hesing,  Esq.,  Chicago,  April  7,  1865. 

"Present —  (Private.) 

"Dear  Sir — Inclosed  please  find  twenty  dollars,  for  which  please 
use  your  influence  to  get  me  nominated  for  police  court  clerk ;  if  I 
get  the  nomination,  call  on  me  for  twenty  more. 

"I  am,  sir,  very  truly  yours, 

"Joseph  Liness." 

Hesing  used  his  influence  not  for  Liness  but  against  him,  where- 
upon the  latter  brings  this  action  to  recover  the  twenty  dollars.  The 
object  of  sending  this  money  was  to  secure  the  nomination  and  elec- 
tion of  the  plaintifif  to  a  public  office  of  trust  and  responsibility  with- 
out reference  to  his  fitness  for  the  position  or  the  public  good.  It 
was  an  attempt  to  influence,  by  moneyed  considerations,  the  action  of 
the  defendant,  in  a  matter  where  every  person  should  be  governed 
solely  by  a  regard  for  the  public  welfare.  The  principle  is  well-set- 
tled that  courts  will  lend  no  sanction  to  transactions  of  this  char- 
acter, by  recognizing  them  as  the  basis  of  legal  obligations.  Ex  turpi 
causa  non  oritur  actio.  We  must  leave  these  parties  as  we  find  them. 

Judgment  affirmed. 


LEMON  V.  GROSSKOPF. 

22  Wis.  447. — 1868. 

In  the  winter  of  1865-66,  the  firm  of  Briggs,  Lemon  &  Co.,  of 
which  plaintiff  was  a  member,  were  the  originators  and  owners  of  a 

mitted  his  indebtedness  and  chose  to  pay  it,  the  defendant,  who  received  it 
upon  his  promise  to  pay  the  plaintiff,  would  have  no  possible  defense  to  an 
action  by  the  plaintiff  to  compel  such  payment.  Such  an  action  is  in  no  sense 
founded  upon  an  illegal  contract.  That  matter  was  closed  when  the  party 
owing  the  money  under  it  paid  it  to  a  third  person  to  be  paid  to  the  plaintiff." 
In  Morgan  v.  Groff,  4  Barb.  (N.  Y.)  524  (1848),  plaintiff  sent  to  defend- 
ant a  check  (afterward  cashed  by  defendant)  to  be  used  by  the  latter  in  mak- 
ing a  wager  on  an  election  with  Thompson,  for  plaintiff.  Defendant  did  not 
make  the  bet  as  directed  ancf  after  election,  plaintiff  sued  to  recover  the 
money.  Held,  he  could  do  so:  ist,  because,  if  the  transaction  "be  regarded 
as  a  contract,  it  is  very  clear  that  it  was  never  executed;"  2d,  because,  "if 
the  defendant  was  merely  the  agent  of  the  plaintiff  in  making  the  contem- 
plated bet  with  Thompson — and  this  is  all  the  proof  makes  out — the  defend- 
ant cannot  excuse  himself  from  paying  over  the  money  because  it  was  sent 
to  him  for  an  illegal  f)urpose."  This  case  overruled  the  case  of  Morgan  v. 
GrofT,  5  Dcnio  364  (1848). 


ILLEGAL    CONTRACT"^  23 1 

httery  scheme  in  the  city  of  Chicag^o,  IlHnois,  known  and  described 
as  a  gift  concert,  the  tickets  of  which  were  sokl  at  one  doUar  each. 
During  that  winter,  they  placed  in  the  defendant's  hands  a  number 
of  thetickets  to  be  sokl  by  him  as  their  agent ;  and  there  was  an  un- 
derstanding between  them  that  he  should  retain  the  money  received 
for  such  tickets  until  satisfied  that  the  drawing  of  the  prizes  in  said 
scheme  was  to  be  fairly  conducted.  During  the  same  winter,  said 
firm  left  with  one  Kilgore,  in  the  city  of  Alilwaukee,  a  number  of 
said  tickets  to  be  sold  by  him  as  their  agent,  the  money  received  by 
him  to  be  paid  over  to  them  before  the  drawing  of  the  prizes.  De- 
fendant, as  agent  of  said  firm,  sold  258  tickets  and  received  $258 
therefor ;  and  he  himself  retained  nineteen  of  the  tickets  as  a  pur- 
chaser. Before  the  drawing  of  the  prizes  (which  took  place  March 
28,  1866),  plaintifif  became  sole  owner  of  said  gift  concert  scheme. 
Before  said  drawing,  Kilgore  was  directed  by  defendant  to  deliver 
to  him  all  moneys  which  he  (Kilgore)  had  received  as  agent  for  the 
sale  of  said  tickets,  to  be  transmitted  to  the  plaintiff ;  and  accord- 
ingly he  did  deliver  to  defendant  $255  received  by  him  for  tickets ; 
$95  of  which  were  so  delivered  without  any  conditions  or  instruc- 
tions, other  than  a  statement  that  it  was  money  for  the  plaintiff,  de- 
rived from  the  sale  of  tickets  in  said  scheme  in  this  state ;  but  when 
the  balance  of  the  $255  was  delivered  to  defendant,  Kilgore  directed 
him  to  retain  the  same  until  satisfied  that  "the  show  was  all  right," 
though  Kilgore  had  no  authority  from  plaintiff  to  attach  any  con- 
ditions to  the  transmission  of  said  money  by  defendant.  Defendant 
went  to  Chicago  about  the  time  the  drawing  was  to  take  place ;  and, 
before  the  drawing,  becoming  satisfied  that  it  was  to  take  place  fairly, 
according  to  the  advertisement,  he  accounted  with  plaintiff  for  all 
the  money  he  had  received  for  tickets  sold  by  himself,  and  for  nine- 
teen tickets  which  he  retained  as  sold  to  himself,  and  for  said  sum 
of  $255  received  from  Kilgore,  and  gave  plaintiff  his  check  on  a 
bank  in  Milwaukee  for  the  whole  amount,  which  was  intended  as  a 
payment ;  but  said  check  was  not  paid.  Afterward  defendant  gave 
plaintiff  his  note  at  thirty  days  for  the  amount  of  said  check,  with 
interest,  and  took  up  the  check.   The  present  action  is  upon  the  note. 

The  county  court  held  that  the  plaintiff  could  not  recover ;  and 
from  a  judgment  against  him,  plaintiff  appealed. 

Cole,  J. — The  counsel  on  both  sides  substantially  concede  that  the 
rule  is  well  settled,  that  courts  will  not  enforce  illegal  contracts ;  but 
they  differ  as  to  the  application  of  that  rule  to  the  facts  of  this  case. 
So  far  as  the  nineteen  tickets,  which  the  defendant  retained  for 
himself,  are  concerned,  it  is  admitted  by  the  plaintiff''s  counsel  that 
no  recovery  can  be  had.  Then  the  question  arises,  was  the  plaintiff 
entitled  to  recover  the  money  received  by  the  defendant  for  tick- 
ets sold  by  himself?  It  is  insisted  that  he  can  recover  that  money 
because  the  illegal  contract  has  been  fully  executed :  the  purchasers 
of  the  tickets  having  paid  over  the  same  to  the  defendant  for  the 
use  of  the  plaintiff.  It  is  said  that  when  money  is  paid  by  one  per- 
son, on  an  illegal  contract,  to  the  agent  of  the  party  entitled  to  re- 


232  BENEFITS    CONFERRED    UNDER    CONTRACT. 

ceive  it,  such  agent  cannot  set  up  the  illegahty  as  an  answer  to  the 
claim  of  the  principal ;  that,  as  between  the  agent  and  the  principal, 
the  action  is  not  founded  on  the  illegal  contract,  nor  does  the  obli- 
gation of  the  agent  to  pay  over  the  money  grow  out  of  such  con- 
tract, but  arises  from  the  fact  that  the  agent  has  received  money 
for  the  principal.  This  may  be  true  in  some  cases,  and  seems  to  be 
the  ground  upon  which  Tenant  v.  Elliott,  2  B.  &  P.  4;  Farmer  v. 
Russell,  id.  296;  Sharp  v.  Ta3dor,  2  Phillips  (22  Eng.  Ch.  R.)  801  ; 
Owen  V.  Davis,  i  Bailey  315,  and  some  other  cases  to  which  we  were 
referred  on  the  argument,  are  decided.  It  seems  to  us,  however, 
that  the  doctrine  of  these  cases  is  not  entirely  applicable  to  the  case 
before  us.  The  difference  may  not  be  very  discernible,  but  still  we 
are  disposed  to  give  it  weight  in  our  decision.  Here  the  defendant 
was  employed  by  the  plaintiff  to  sell  these  lottery  tickets,  receive 
and  retain  the  money  for  them  until  he  became  satisfied  that  the 
drav/ing  of  the  prizes  in  the  scheme  was  fairly  conducted,  and  then 
account  to  the  plaintiff.  It  was  as  well  a  part  of  his  agency  to  re- 
ceive and  account  for  the  money,  as  to  sell  the  tickets.  And  an  ac- 
tion to  recover  this  money  goes  in  affirmance  of  the  illegal  contract, 
and  to  enforce  the  performance  of  this  duty.  The  main  object  of  the 
agency  was  to  do  an  act  criminal  by  our  statute  (section  2,  ch.  169, 
R.  S.) — to  engage  "in  a  trafiic  not  merely  forbidden,  but  fraudulent 
and  indictable."  And  if  the  agent  is  dishonest  in  the  transaction  of 
the  business — if  he  refuses  to  account  for  money  which  he  has  se- 
cured for  the  tickets  sold  by  him — should  the  court  interfere  and 
enforce  a  performance  of  his  duty?  It  seems  to  us  that  the  court 
must  decline  to  interfere  on  either  side,  upon  the  maxim,  ex  turpi 
causa  non  oritur  actio.  In  Hunt  v.  Knickerbocker,  5  Johns.  326, 
which  was  an  action  on  a  contract  made  for  the  sale  of  tickets  in  a 
lottery  not  authorized  by  the  legislature  of  New  York,  Mr.  Justice 
Thompson,  in  delivering  the  opinion  of  the  court,  said :  "No  case 
could  be  found  where  an  action  has  been  sustained,  which  goes  in 
affirmance  of  an  illegal  contract,  and  where  the  object  of  it  is  to 
enforce  the  performance  of  an  engagement  prohibited  by  law. 
Wherever  an  action  has  been  sustained  against  a  party,  to  pre- 
vent him  from  retaining  the  benefit  derived  from  an  unlawful  act, 
the  action  proceeds  in  disaffirmance  of  the  contract ;  and,  instead  of 
endeavoring  to  enforce  it,  presumes  it  void."  See  Thalimer  v.  Brink- 
erhoff,  20  Johns.  386-397;  Armstrong  v.  Toler,  11  Wheaton  258. 
It  seems  to  us  that  the  obligation  of  the  defendant  to  pay  over  the 
money  which  he  has  received  for  the  tickets  sold  by  him,  is  so  con- 
nected with  the  illegal  contract  as  to  be  inseparable  from  it,  and  that 
a  court  should  not  lend  its  aid  to  enforce  it.  Murdock  v.  Kilbourn, 
6  Wis.  468. 

But  the  money  which  the  defendant  received  from  Kilgore  stands 
upon  different  grounds.  So  far  as  that  money  was  concerned,  it 
seems  to  us  that  it  stands  precisely  on  the  same  ground  it  would, 
harl  Kilgore  delivered  the  money  to  some  stranger,  or  to  an  express 
company,  to  transmit  it  to  the  plaintiff.    It  is  disconnected  with  the 


ILLEGAL    CONTRACTS.  235 

illegal  transaction,  and  is  not  affected  by  it.  It  is  the  case  su,G^gestcd 
by  the  master  of  the  rolls  in  Thompson  v.  Thompson,  7  Ves.  Jr. 
468-471,  of  money  paid  into  the  hands  of  a  third  person  for  the  use 
of  the  plaintiff,  who  may  recover  the  same  from  such  third  person, 
although  the  money  is  the  proceeds  of  some  illegal  transaction.  Mer- 
ritt  V.  Millard,  5  Bosworth  645.  Therefore,  so  far  as  respects  the  ( 
two  hundred  and  fifty-five  dollars  paid  the  defendant  by  Kilgore 
for  the  plaintiff,  the  action  is  maintainable. 

The  judgment  of  the  county  court  must  be  reversed,  and  the  cause 
remanded  with  directions  to  enter  judgment  for  the  plaintiff  for  that 
amount. 

By  the  court.   Ordered  accordingly. 


SMITH  V.  RICHMOND.! 

70  S.  W.   (Ky.)  846.— 1902. 

On  demurrer.  Demurrer  sustained. 

GuFFY,  C.  J. — *  *  *  *  ^g  copy  the  opinion  of  the  court  be- 
low, as  one  of  the  means  of  making  a  clear  statement  of  the  conten- 
tions of  the  parties  hereto :  "The  cause  is  submitted  on  demurrer 
to  petition  as  amended.  Tliere  are  some  depositions  taken  on  behalf 
of  plaintiff  in  the  record,  but  they  are  not  read  or  considered  on  this 
motion.  There  is  no  ascertainment  of  the  facts,  and  the  allegations 
of  the  petition  as  amended  are  taken  as  true  only  for  the  purpose  of 
this  demurrer.  The  facts  so  taken  as  true  are  as  follows :  In  the 
year  1890,  or  prior  thereto,  the  plaintiff,  Smith,  was  engaged  in  the 
business  of  conducting  a  lottery  in  the  city  of  Cincinnati,  Ohio.  S.  T. 
Dickinson  &  Co.  were  at  the  same  time  engaged  in  the  same  busi- 
ness in  the  same  city.  M.  J.  Richmond,  defendant  hereto,  was  the 
employe  and  agent  of  said  Dickinson  &  Co.  One  Louis  Davis  was 
also  conducting  the  same  business  at  same  time  and  place.  The 
plaintiff,  Smith,  and  said  Davis  and  said  Richmond,  representing 
said  Dickinson  &  Co.,  held  a  meeting,  at  which  it  was  agreed  that 
the  several  parties  engaged  in  said  business  should  each  month  pay 
to  said  Richmond  a  certain  sum  of  money,  to  be  applied  by  said 
Richmond  in  bribing  and  corrupting  the  authorities  of  the  state  of 
Ohio  and  of  the  city  of  Cincinnati,  to  thereby  procure  immunity  for 
those  engaged  in  said  business.  The  said  Smith,  pursuant  to  said 
agreement,  paid  to  said  Richmond  from  May,  1890,  to  May,  1897, 
the  sum  of  $16,075,  tiut  the  said  Richmond,  instead  of  using  said 
money  in  the  bribery  of  Ohio  officials  (assuming,  for  the  purposes 
of  this  demurrer,  that  such  a  thing  were  possible),  retained  the 
money  and  converted  it  to  his  own  use.  This  action  is  instituted  by 

^  Not  officially  reported. 


234  BENEFITS    CONFERRED    UNDER    CONTRACT. 

Smith  to  recover  of  Richmond  said  sum  of  $16,075,  &rid,  on  de- 
murrer to  the  petition  as  amended,  the  question  arises  as  to  whether 
the  law  and  the  courts  will  furnish  relief  to  one  occupyinjr  the  po- 
sition held  b}'  the  plaintiff,  Smith,  This  action  is  in  equity.  It  is 
contended  by  the  defendant  on  this  demurrer  that  where  the  con- 
sideration of  a  contract  is  an  agreement  to  hinder,  impede,  or  de- 
feat the  administration  of  the  criminal  or  penal  laws,  the  contract 
is  against  public  policy,  is  void,  and  that  no  party  thereto  can  en- 
force it  by  process  of  law.  The  plaintiff,  on  this  demurrer,  admits 
the  existence  of  this  principle  contended  for  by  defendant,  but  says 
it  applies  only  as  between  the  parties  to  such  a  contract,  and  does 
not  apply  as  between  one  of  the  parties  and  his  agent,  or  the  agent 
of  all  the  parties,  acting  as  go-between  in  carrying  out  the  vicious 
provisions  of  the  contract.  The  plaintiff  quotes  and  relies  upon  the 
opinion  of  the  Kentucky  court  of  appeals  in  case  of  Martin  v.  Rich- 
ardson, 94  Ky.  183,  21  S.  W.  1039,  19  L.  R.  A.  692,  42  Am.  St. 
Rcp-  353-  ^lartin  was  the  agent  of  a  lottery  company.  He  sold  to 
Richardson  some  tickets  in  his  lottery,  one  of  which  drew  a  prize ; 
and,  while  Richardson  Avas  ignorant  of  this  fact,  Martin  induced  him 
to  exchange  the  tickets  he  held  for  other  tickets,  and  Alartin  collected 
the  prize  from  the  lottery  company.  Richardson  sued  Martin  for 
the  money,  and  the  court  of  appeals  held  that  he  could  recover ;  that, 
even  assuming  the  purchase  and  sale  of  the  lottery  tickets  to  have 
been  an  illegal  transaction,  Richardson  could  not  avail  himself  of 
that  fact  as  a  defense.  It  seems  to  me  that  it  w'ould  have  been  strange 
had  the  court  of  appeals  held  otherwise.  The  purchase  and  sale  of 
the  lottery  tickets  constituted  a  transaction  that  was,  at  most,  illegal. 
The  act  of  Martin  in  procuring  an  exchange  of  the  tickets  was  a 
crime.  The  court  of  appeals  simply  refused  to  permit  the  commis- 
sion of  an  act,  at  most  illegal,  by  one,  'to  be  pleaded  as  a  defense 
to  the  commission  of  a  crime  by  another.'  It  refused  to  permit  the 
commission  of  a  lesser  wrong  by  one  to  be  used  as  a  defense  to  the 
commission  of  a  greater  crime  by  another.  This  opinion  in  that  case 
is  not  applicable  to  the  case  at  bar.  The  plaintiff  quotes  and  relies 
upon  Wharton  on  Agency,  and  the  opinions  of  several  state  courts, 
from  which  it  may  be  assumed  to  be  the  rule  that  an  agent  who  has 
in  his  hands  money  belonging  to  his  principal,  on  a  closed  account, 
cannot  set  up  as  a  defense,  in  an  action  by  the  principal  for  money 
had  and  received,  the  illegality  of  whole  or  a  part  of  the  trans- 
action. In  all  the  extracts  from  these  authorities  quoted  in  brief 
for  plaintiff,  the  word  'illegal'  is  used  in  speaking  of  the  contract. 
Plaintiff's  counsel  has  not  provided  this  court  with  the  facts  of  any 
of  the  cases  he  has  referred  to.  The  only  reference  made  in  any  of 
the  extracts  set  out  in  plaintiff's  brief  is  to  'illegal'  contracts.  It  ap- 
pears certain  that  if  Smith  had  furnished  this  money  to  Richmond 
as  his  agent  for  the  purpose  of  conducting  a  lottery,  and  that  Rich- 
mond retained  and  converted  the  money,  Smith  could  recover  of 
him,  even  in  a  state  where  the  conducting  of  a  lottery  was  unlawful. 
r)Ut  in  the  case  at  bar  the  plaintiff  was  for  seven  years  continuously 


ILLEGAL    CONTRACTS.  235 

engaged  not  only  in  conducting  an  unlawful  business,  but  in  at- 
tempting, and,  as  he  believes,  successfully  attempting,  to  bribe  and 
corrupt  the  authorities  of  Ohio  and  Cincinnati,  and  to  that  end  he 
delivered  to  Richmond  over  $16,000.  For  the  seven  years  this  plain- 
tiff was  engaged  in  the  commission  of  an  act  that  this  court  may 
fairly  assume  to  be  a  crime  in  the  state  of  Ohio,  the  place  of  its  com- 
mission. Counsel  for  plaintiff'  has  not  furnished  this  court  a  single 
instance  in  which  any  court  has  given  relief  to  one  in  such  a  posi- 
tion, as  against  a  defaulting  agent.  I  believe  there  is  a  broad  dis- 
tinction between  contracts  illegal  and  contracts  criminal,  even  when 
considered  in  reference  only  to  the  relations  and  respective  rights 
of  one  of  the  parties  thereto  and  his  agent.  This  plaintiff  is  asking 
the  law  and  the  courts  of  Kentucky  to  aid  him  in  recovering  back- 
money  that  he  paid  out  for  seven  years,  believing  it  was  being  used 
in  the  bribery  of  the  authorities  of  a  sister  state.  This  does  not  seem 
to  be  the  purpose  for  which  the  courts  of  this  state  are  created  or 
are  existing.  It  is  but  rarely  that  such  an  unblushing  confession  is 
seen  as  in  the  plaintiff's  pleadings  in  this  case.  It  may  be  observed 
that  Richmond,  in  putting  this  money  in  his  pocket,  and  keeping  it 
there,  although  in  so  doing  he  defaulted,  was  guilty  of  an  offense 
much  less  than  that  he  would  have  been  guilty  of  had  he  carried  out 
the  purposes  of  his  principal.  In  this  connection  the  fact  is  empha- 
sized that  as  to  Richmond  there  is  no  evidence  that  these  things  are 
true,  and  that  they  are  assumed  to  be  true  solely  for  the  purpose  of 
this  demurrer.  It  appears  by  his  own  pleading  that  the  hands  of 
Smith  are  so  unclean  that  he  is  not  entitled  to  ask  any  relief  in  any 
court,  and  the  demurrer  to  the  petition  as  amended  is  sustained.  The 
plaintiff  declines  to  plead  further.  The  petition  herein  is  dismissed, 
and  it  is  adjudged  that  the  defendant  recover  of  the  plaintiff  his 
costs  herein,  to  w^hich  plaintiff  excepts,  and  prays  an  appeal  to  the 
court  of  appeals,  which  is  granted." 

It  is  evident  from  the  pleadings  of  the  appellant  that  he,  the  ap- 
pellee Richmond,  and  Davis  were  engaged  in  operating  lotteries  in 
the  city  of  Cincinnati,  which  was  a  violation  of  the  criminal  laws  of 
the  state ;  that  in  order  to  procure  immunity  from  arrest  and  punish- 
ment, or,  in  other  words,  to  corrupt  the  officers  and  to  defeat  jus- 
tice, they  made  the  agreement  set  out  in  the  petition,  and  Richmond 
was  to  receive  and  pay  over  the  money  to  procure  the  desired  im- 
munity from  arrest  and  prosecution  ;  and  that  the  business  was  so 
conducted  for  about  seven  years,  during  which  time  the  sum  aggre- 
gating $16,075  was  paid  over  to  Richmond.  It  mav  be  inferred  from 
the  petition  that  the  desired  protection  was  secured,  as  it  is  nowhere 
claimed  that  the  object  of  the  agreement  was  defeated.  Appellant 
refers  to  a  number  of  decisions  of  this  and  other  courts  in  his  two 
able  briefs,  which  he  claims  sustain  his  contention  in  this  case.  Upon 
examination  of  the  various  cases,  it  will  be  found  that  they  cover 
what  may  be  called  three  classes  of  cases :  One  is  where  a  party 
simply  employs  a  man  as  agent  to  go  and  pay  money  to  a  third 
party  for  an  illegal  purpose.   Another  class  is  where  parties  may  be 


236  BENEFITS    CONFERRED    UNDER    CONTRACT. 

engaged  in  an  illegal  business,  and  have  realized  considerable  pe- 
cuniary profit,  in  the  shape  of  money  or  other  property,  which  is 
in  possession  of  the  other  party  to  the  crime,  in  which  case  some 
courts  hold  that  such  party  has  in  his  hands  money  or  property 
which  justly  belongs  to  the  other  parties,  and,  although  it  is  the 
fruit  of  illegal  business,  yet  he  will  not  be  allowed  to  have  the  same 
simply  because  the  business  which  procured  the  property  is  illegal. 
The  other  class  is  where  employes  who  are  simply  the  servants  em- 
ployed to  carry  on  and  conduct  an  illegal  business  will  not  be  per- 
mitted to  withhold  from  the  owner  property  which  was  placed  in 
their  hands  by  him  for  the  purpose  of  conducting  or  carrying  on 
such  illegal  business.    The  case  at  bar  does  not  fall  within  the  rule 
announced  in  any  of  the  cases  referred  to.    In  this  case  these  parties 
clearly  entered  into  a  conspiracy  or  partnership  for  the  purpose  of 
enabling  them  to  violate  the  laws  of  the  state  of  Ohio,  and  to  cor- 
rupt or  bribe  the  officers  of  the  law.    These  parties  v/ere  in  reality 
partners  in  the  venture  or  undertaking  specified,  and  in  the  general 
course  of  business,  be  it  legal  or  illegal,  one  of  the  partners  only 
would  handle  the  money  or  pay  out  at  a  time.    In  other  words,  all 
the  parties  would  not  be  expected  to  go  together  and  pay  out  or 
receive  money  together,  but  the  act  of  one  is  the  act  of  all.  We  con- 
;    elude,  therefore,  that  the  transaction  set  up  in  the  petition  must  be 
/  treated  as  the  formation  of  a  partnership   for  an  illegal  purpose, 
I    greatly  to  be  condemned  from  any  standpoint.    A  corruption  of  the 
I    authorities  of  a  great  state  or  city  should  not  be  tolerated.    The 
;     payment  of  money  to  defeat  the  enforcement  of  the  criminal  laws 
j     is  one  of  the  most  heinous  of  crimes,  and  no  court  should  afford  any 
I     relief  to  the  parties  engaged  in  such  a  nefarious  business.    The 
!     operation  of  lotteries  is  by  common  consent  regarded  as  contrary 
f     to  public  policy,  and  highly  immoral,  and  this  plaintiff  has  added  to 
that  unholy  business  a  still  greater  crime  of  bribing  public  officers, 
and  paying  money  to  prevent  the  enforcement  of  the  criminal  laws 
of  a  sister  state.    Both  parties,  according  to  the  petition,  are  guilty 
of  a  great  crime,  and  the  court  should  not  hear  the  complaints  of 
either  in  respect  to  the  illegal  business  conducted  by  them.  To  allow 
such  would,  in  effect,  be  to  wink  at,  if  not  to  sanction,  the  most  cor- 
rupt of  practices.   We  think  the  opinion  of  the  court  below  is  in  ac- 
cord with  nearly  all,  if  not  quite  all,  the  authorities  respecting  such 
transactions,  and  in   accord  with  the  principles  announced   in  the 
recent  case  of  Safe  Deposit  Co.  v.  Respass,  (Ky.)  66  S.  W.  421,  56 
L.  R.  A.  479.   To  allow  the  appellant  to  recover  in  this  case  would, 
in  effect,  be  saying  to  all  parties  that  "you  can  go  on  with  reason- 
able safety,  furnish  money  to  a  person  for  illegal  and  criminal  pur- 
poses, and,  after  you  have  derived  the  benefit  therefrom,  sue  the  so- 
called  agent  and  recover  back  the  money,  unless  he,  perchance,  was 
able  to  prove  to  the  satisfaction  of  the  court  that  he  in  like  manner 
had  paid  over  the  money  for  the  said  unlawful  purposes."    As  be- 
fore stated,  we  do  not  think  that  Richmond  was  the  agent  of  plain- 
tiff, in  the  legal  sense  of  agency,  but  was  simply  one  of  the  partners 


ILLEGAL    CONTRACTS.  23 

in  crime ;  and  we  know  of  no  court  that  has  ever  sustained  a  suit 
of  one  partner  for  an  accounting  for  money  invested  in  an  unlawful 
purpose,  especially  if  such  purpose  was  to  violate  the  criminal  laws 
of  a  state,  and  shield  offenders  from  punishment,  or  corrupt  public 
officers. 

Judgment  affirmed. 


-h 


V 
GOODRICH  V.  HOUGHTON  et  al. 

134  N.  Y.  115. — 1892. 

Landon,  J. — The  plaintiff  seeks  to  recover  money  alleged  to  have 
been  received  by  the  defendant  Byron  D.  Houghton  to  her  use,  and 
appropriated  by  both  defendants.  The  plaintiff  and  Byron  D.  Hough- 
ton, at  Oswego,  N.  Y.,  agreed  that  each  should  contribute  $25,  and 
with  the  total  purchase  tickets  in  the  Louisiana  State  Lottery  at 
New  Orleans,  and  that  each  should  have  one-half  the  prize  money 
drawn.  The  plaintiff  thereupon  delivered  $25  to  said  defendant, 
who,  adding  $25  of  his  own,  sent  the  $50  by  express  from  Oswego 
to  the  State  Lottery  at  New  Orleans,  with  an  order  in  his  own  name 
for  the  tickets.  The  lottery  company  sent  him  the  tickets  by  express 
to  Oswego.  These  tickets  subsequently  drew  prizes  to  the  amount 
of  $25,020,  which  sum  was  forwarded  by  the  lottery  company  by 
express  to  said  defendant  at  Oswego.  He  received  it  there,  and  paid 
one-fourth  thereof  to  the  plaintiff,  refused  to  pay  any  more,  and  he 
and  the  other  defendant  appropriated  the  three-fourths.  The  plain- 
tiff by  this  action  seeks  to  recover  an  additional  one-fourth.  (The  ■ 
difficulty  with  the  plaintiff's  case,  as  clearly  shown  by  the  opinion 
of  the  general  term  (9  N.  Y.  Supp.  214),  is  that  she  cannot  prove 
that  the  defendants  ought  to  pay  her  any  part  of  the  prize  money 
except  by  proof  of  the  contract ;  and  as  it  was  a  gambling  contract, 
still  executory  as  respects  the  division  of  the  prize  money,  the  law  » 
will  not  enforce  its  execution,  but  will  leave  the  parties  where  it  \ 
finds  them.  Nellis  v.  Clark,  20  Wend.  24 ;  Haynes  v.  Rudd,  83  N. 
Y.  253 ;  Woodworth  v.  Bennett,  43  N.  Y.  273 ;  Knowlton  v.  Spring 
Co.,  57  N.  Y.  528.  Any  agreement  made  in  this  state  to  gamble 
in  the  legalized  lotteries  of  another  state  is  void  in  this  state.  Pen. 
Code,  §§  324-334;  3  Rev.  St.  (8th  Ed.),  p.  2220,  g§  24,  25,  32,  35, 
38,  39 ;  I  Rev.  St.,  p.  665  ;  People  v.  Noelke,  94  N.  Y.  137. 

The  learned  counsel  for  the  appellant  does  not  contest  these  legal 
propositions,  but  contests  the  assumption  of  fact  that  the  plaintiff's 
case  requires  her  to  trace  her  right  to  recover  through  a  violation 
of  our  law.  He  contends  that  lotteries  are  lawful  in  Louisiana,  and 
hence  the  buying  of  tickets  and  drawing  of  prize  money  are  lawful 
there,  and  that,  as  the  money  was  lawfully  acquired  in  that  state,  it 
was  lawfully  transmitted  to  the  defendant  in  this  state,  and  the  di- 
vision of  it  here  would  violate  no  law,  and  therefore  defendants' 


238  BENEFITS    CONFERRED    UNDER    CONTRACT. 

agreement  to  divide  it  was  not  unlawful.  This  contention,  if  sound, 
manifestly  impairs  that  purpose  of  our  law,  which  seeks  to  protect 
the  people  of  this  state  from  participation  in  the  vice  and  evils  of 
lotteries.  But  assuming-  that  every  part  of  the  transaction  which 
took  place  in  Louisiana  was  perfectly  valid,  and  that  the  laws  of  this 
state  can  in  no  respect  invalidate  what  was  there  completed,  it  is 
undeniable  that  the  division  of  the  prize  money  was  not  made  there, 
but  by  the  contract  of  the  parties  was  to  be  made  here.  The  contract 
for  division  was  part  of  the  entire  contract,  was  made  here,  and  was 
to  be  performed  here.  Its  validity  must  be  determined  by  our  law. 
We  undo  nothing  that  has  been  done  in  Louisiana,  but  we  refuse  to 
complete  in  this  state  any  part  of  the  transaction  which  remains  un- 
finished. The  plaintiff  cannot  recover  without  resort  to  the  unexe- 
cuted part  of  the  contract. 

The  learned  counsel  for  the  plaintiff  further  urges  that,  after  the 
prize  had  been  drawn,  the  parties  agreed  that  it  should  be  forwarded 
by  express  to  the  defendant  at  Oswego,  and  that  he  should,  upon 
receiving  it,  bring  it  to  the  plaintiff's  house  in  that  city,  and  there 
divide  it  equally ;  and  that  that  agreement  does  not  involve  the  orig- 
inal agreement,  but  merely  respects  the  receipt  and  division  of 
money  which  they  could  command  in  New  Orleans.  The  defendant 
did  send  for  and  receive  the  money  through  the  express  company. 
But  he  did  not  receive  the  plaintiff's  share  as  a  depositary  for  her 
use  or  in  order  to  deliver  it  to  her.  No  such  question  is  presented. 
The  defendant  had  bought  the  tickets  in  his  own  name,  and  hence 
received  the  money  as  if  wholly  due  to  himself.  The  consignor  of 
the  money  imposed  no  duty  upon  him  to  deliver  any  of  it  to  plain- 
tiff. Grant  that  the  defendant  violated  his  agreement  with  the  plain- 
tiff in  taking  the  title  to  the  tickets  in  his  own  name,  the  court,  for 
reasons  already  stated,  could  not  aid  the  plaintiff'  in  that  respect. 
The  defendant  could,  therefore,  after  the  prize  was  awarded,  secure 
possession  of  the  money  without  the  assistance  of  the  plaintiff. 
When,  therefore,  he  agreed  to  send  for  the  money  by  express,  and 
divide  it  with  the  plaintiff  when  obtained,  he  did  so  upon  no  new 
consideration,  but  because  of  the  original  agreement  to  buy  the 
tickets  and  divide  the  prize.  The  original  agreement  thus  cannot  be 
kept  out  of  sight,  and,  as  it  will  not  support  a  new  promise,  the 
plaintiff  is  still  remediless.  Concurring,  as  we  do,  in  the  opinion  of 
the  learned  general  term,  further  discussion  is  unnecessary.  Judg^ 
ment  affirmed  with  costs.  All  concur. 


Summary. — The  following  summary  is  given  in  an  anonymous 
note  to  Jaqucs  v.  Withey,  i^H.  Bl.  65  (4th  Ed.  1827)  :  'The  late 
decisions  with  regard  to  the  cases  in  which  a  party  is  entitled  to 
recover  money  paid  by  himself  in  pursuance  of  an  illegal  contract, 
may  be  classed  under  the  following  heads:  i.  He  is  entitled  to  re- 
cover it  while  the  contract  remains  executory,  even  though  he  is  in 
pari  delicto  with  the  defendant;  Tappendal  v.  Randall,  2  Bos.  &  Pul. 


MISTAKE   OF    FACT.  239 

467.  Aubert  v.  Walsh,  3  Taunt.  277.  Busk  v.  Walsh,  4  Taunt.  290. 
S.  P.  per  BuLLER,  J.,  Lovvry  v.  Bourdieu,  Dougl.  468.  A  distinction 
however  has  been  taken  between  contracts  merely  illegal  and  con- 
tracts to  perform  some  act  malum  in  se,  or  grossly  immoral,  in  which 
latter  case  it  is  said  the  courts  will  not  interfere  to  compel  the  re- 
payment of  the  money  though  the  contract  remains  executory  (per 
Heath),  Tappendal  v.  Randall,  2  Bos,  &  Pul.  471  ;  but  the  distinc- 
tion between  mala  prohibita  and  mala  in  se,  has  been  frequently 
denied.  See  Farmer  v.  Russell,  i  B.  &  P.  298.  Aubert  v.  Maze,  2  B. 
&  P.  371.  Cannan  v.  Bryce,  3  B.  &  A.  179. — II.  He  is  entitled  to 
recover  it  from  a  stakeholder,  into  whose  hands  it  has  been  paid 
upon  an  illegal  contract,  which  has  been  executed  by  the 
happening  of  the  event  upon  which  the  wager  is  made,  unless 
the  money  has  been  paid  over  by  the  stakeholder  to  the  other 
party  before  demand ;  Cotton  v.  Thurland,  5  T.  R.  405 ;  Bate 
V.  Cartwright,  7  Price  540;  Smith  v.  Bickmore,  4  Taunt.  474, 
and  see  i  R.  &  M.  N.  P.  C.  214  (note). — III.  He  is  entitled  to  re- 
cover it  though  the  contract  is  executed,  provided  he  is  not  in 
pari  delicto  with  the  defendant ;  Jaques  v.  Withy,  supra.  Williams 
V.  Hedley,  8  East  378. — IV.  He  is  not  entitled  to  recover  it 
where  the  contract  is  executed,  and  he  is  in  pari  delicto  with  the 
defendant.  Andree  v.  Fletcher,  3  T.  R.  266;  Howson  v.  Hancock, 
8  T.  R.  575 ;  Vandyck  v.  Hewett,  i  East  96 ;  Morck  v.  Abel,  3  Bos. 
&  Pul.  35  ;  Thistlewood  v.  Cracroft,  i  M.  &  S.  500  ;  Stokes  v.  Twitch- 
in,  8  Taunt.  492. — The  agent  of  the  party  to  an  illegal  contract,  who 
receives  money  under  it  to  the  use  of  his  principal,  cannot  set  up 
the  illegality  of  the  transaction  in  an  action  brought  against  him  by 
his  principal.  Tenant  v.  Elliott,  i  B.  &  P.  3 ;  Farmer  v.  Russell, 
ibid  296;  but  see  M'Gregor  v.  Lowe,  i  R.  &  M.  N.  P.  C.  57. — As  to 
the  recovery  in  equity  of  money  paid  under  an  illegal  contract,  see 
Morris  v.  M'Cullock,  Amb.  432,  2  Eden.  190,  s.  c.  Whittingham 
v.  Burgoyne,  3  Anstr.  900." 


C.     Recovery  for  Benefits  not  Conferred  Volun- 
tarily. 

1.     MISTAKE. 

a.     Mistake  of  Fact. 

i.     In  General. 

BALTIMORE  AND  SUSQUEHANNA  R.  R.  v.  FAUNCE  AND 

R'\SSMORE. 
6  Gill  (Md.)  68.— 1847. 

Chambers,  J. — Two  questions  arise  on  this  record  :  First,  whether 
the  plaintiffs  can  recover  back  money  paid  under  such  circum- 
stances of  knowledge  or  means  of  information  as  existed  in  this 


240  MISTAKE   OF    FACT. 

case?  And  secondly,  if  entitled  in  other  respects,  whether  the 
plaintiff  is  precluded  by  reason  of  the  character  of  the  notes  in 
which  the  payment  was  in  part  made  ? 

The  facts  upon  which  the  opinion  of  the  court  was  asked  are, 
that  the  payment  was  made  in  the  mistaken  belief  that  the  sum 
paid  was  the  true  balance  appearing  due  by  the  final  estimate,  and 
that  the  agent  who  made  the  payment  for  the  plaintiffs  intending 
to  pay  that  balance,  and  not  noticing  the  deduction  of  $870,  paid  a 
sum  larger  by  that  amount  than  he  intended.  It  is  rightly  said, 
that  a  party  cannot  recover  money  voluntarily  paid  with  a  full 
knowledge  of  all  the  facts,  although  no  obligation  to  make  such 
payment  existed.  If  informed  of  the  law  which  exempts  him,  he 
must  abide  the  consequences  of  his  folly,  in  abandoning  the  pro- 
tection it  afforded  him — if  ignorant,  he  was  bound  to  acquire  in- 
formation. It  is  regarded  as  a  gift  without  consideration.  But  full 
knowledge  of  the  facts  is  here  negatived.  The  statement  in  the 
bill  of  exception  assumes,  and  the  testimony  of  the  witness  shows, 
that  he  made  the  payment,  believing  at  the  moment  of  making  it, 
that  the  engineer,  whose  estimates  he  was  bound  to  regard,  had 
certified  the  sum  to  be  due  which  was  actually  paid. 

Then  it  is  urged  that  ample  means  were  at  hand  to  obtain  full  and 
accurate  information,  and  many  cases  have  been  referred  to  as  es- 
tablishing the  proposition,  that  a  recovery  cannot  be  had  where  the 
party  paying  has  access  to  information,  and  by  his  own  laches 
neglects  to  acquire  it.  Certainly  some  of  the  authorities  seem  to 
countenance  such  a  doctrine ;  but,  we  think,  the  opposite  opinion 
best  accords  with  the  plainest  principles  of  justice,  and  has  the 
weight  of  authority  to  sustain  it.  The  case  of  Lucas  and  others, 
and  Worwick,  i  IVlod.  &  Rob.  293,  in  many  particulars,  resembles 
this  case.  The  defendant  had  a  claim  against  the  plaintiffs  for 
work  and  labor,  amounting,  as  defendant  alleged,  to  £142 ;  the 
plaintiffs  disputed  certain  items,  and  admitted  a  balance  of  only 
£97;  at  defendant's  request  Lucas,  one  of  the  plaintiffs,  paid  £20 
on  account.  The  defendant  afterwards  met  Lucas  and  agreed  to 
abandon  the  disputed  items.  Whereupon  Lucas  paid  him  £97,  for- 
getting the  previous  payment  of  £20 ;  but,  almost  immediately  after, 
notified  the  defendant  of  the  mistake  and  demanded  the  return  of 
the  £20 :  and  on  his  refusal,  the  action  was  brought  to  recover  that 
sum.  The  case  was  fully  discussed  before  Denman  and  Baron 
Bolland,  who  held  that  as  the  money  was  paid  by  mistake  in  the 
hurry  of  business,  it  might  be  recovered  back  as  received  to  the 
use  of  the  plaintiffs.  The  case  of  Kelly  v.  Solari,  9  M.  &  W.  54, 
was  fully  considered.  There  the  parties  paying  had  at  one  time  a 
knowledge  of  the  fact,  the  forgetfulness  of  which  subsequently  in- 
duced them  to  make  the  payment.  The  Chief  Baron,  at  nisi  prins, 
instructed  the  jury  that  the  previous  knowledge  or  means  of  knowl- 
edge would  prevent  the  recovery ;  but  on  argument,  he  united  with 
all  the  other  iuarons  in  the  o])inion,  that  there  must  be  knowledge 
existing  in  the  mind  at  the  time  of  the  payment.     Of  what  avail  is 


IN    GENERAL.  24I 

it,  in  any  view  of  justice  or  sound  sense,  that  a  man  once  knew 
or  had  means  to  know  a  fact,  if,  at  the  moment  when  alone,  such 
knowledge  is  practically  useful,  he  is  actually  ignorant  of  it? 

A  payment  cannot  well  be  said  to  be  made  voluntarily  when  it  is 
made  in  consequence  alone  of  a  false  view  of  facts.  The  assent  is 
only  induced  by  the  conviction  then  prevailing  in  the  mind,  that 
the  particular  fact  existed,  and  is  scarcely  to  be  distinguished 
from  an  assent  or  agreement  to  pay  on  the  condition  that  the  fact  did 
exist.  The  subsequent  discovery  of  the  error  destroys  the  whole  basis 
of  the  agreement,  and  the  parties  are  restored  to  their  original  condi- 
tion and  rights.  Of  what  avail  is  it  that  industry  and  vigilance  might 
have  procured  the  information?  Still,  the  party  has  done  an  act  he 
did  not  intend  to  do,  and  did  not  know  or  believe  he  was  doing.  In 
this  case,  the  agent  assented  and  agreed  to  pay  only  what  the  en- 
gineer certified ;  he  supposed  he  was  paying  no  more  when  he  de- 
livered the  notes  to  defendants,  and  his  volition  was  no  more  in- 
volved in  any  amount  beyond  than  it  would  have  been  had  he  paid 
them  a  bank  note  of  $1,000,  misreading,  and  intending  it  to  be  a 
note  of  $100.  In  the  case  of  Bell  v.  Gardner,  4  Man.  &  Gran.  11, 
found  in  43  Eng.  Com.  Law  16,  the  judges  of  the  common  pleas 
unanimously  adopt  the  principle  of  Lucas  &  Worwick,  and  apply- 
ing it  to  the  case  before  them  held  it  to  be  a  good  defense  to  a 
suit  on  a  promissory  note,  that  it  had  been  given  to  the  plaintiff 
to  discharge  a  debt  supposed  to  be  due ;  but  which,  owing  to  a  fact 
then  unknown  to  defendant,  was  not  legally  recoverable,  although 
the  defendant  had  ample  means  of  knowing  the  fact. 

We  are  therefore  of  opinion,  that  there  was  nothing  in  the  facts 
of  this  case  as  stated  in  the  exception,  which  would  prevent  the 
plaintiffs  from  recovering,  because  of  the  alleged  voluntary  character 
of  the  payment  with  the  means  of  knowing  and  correcting  the  error 
under  which  it  was  made.  We  will  now  consider  whether  the  recov- 
ery is  barred  by  reason  that  the  payment  was  made  in  the  particular 
notes  which  the  defendants  received.     *     *     *     * 


TINSLAR  V.  MAY. 

8  Wend.  (N.  Y.)  561.— 1832. 

Assumpsit.  The  declaration  contained  the  common  money  counts. 
The  plaintiff  proved  that  in  the  settlement  of  a  bond  and  mortgage 
which  he  held  against  the  defendant,  the  defendant  was  credited 
by  mistake  with  $136.32,  the  interest  of  the  principal  sum  due  the 
plaintiff  for  the  year  ending  on  the  ist  of  April,  1825  ;  that  the 
settlement  took  place  on  the  2d  of  April,  1830,  when  the  sum  of 
$1,448.61  was  paid  to  the  plaintiff,  and  the  bond  and  mortgage  as- 
signed by  the  plaintiff  to  a  brother  of  the  defendant,  at  the  re- 
WooDRUFp's  Cases— Ifi 


242  MISTAKE   OF    FACT. 

quest  of  the  defendant.  The  plaintiff  claimed  to  recover  the  above 
sum  credited  by  mistake.  The  defendant  objected  that  the  plain- 
tiff could  not  recover  as  for  money  had  and  reccizrd;  that  he  should 
have  declared  either  specially  or  upon  the  original  consideration, 
and  if  the  bond  and  mortgage  were  cancelled,  he  should  have  resorted 
to  a  court  of  equity;  which  objection  was  overruled,  and  the  plain- 
tiff had  a  verdict  for  the  amount  of  the  sum  credited  by  mistake, 
with  the  interest  thereof.     The  defendant  moved  for  a  new  trial. 

Sutherland,  J. — I  think  the  motion  for  a  new  trial  should  be 
denied.  The  action  for  money  had  and  received  will  lie.  The  mis- 
take was  equivalent  to  so  much  money  to  the  defendant ;  he  had  a 
credit  to  that  amount,  to  which  he  was  not  entitled.  The  jury  have 
found  the  fact  of  mistake,  and  there  can  be  no  doubt  that  ex  aequo 
et  bono  the  defendant  ought  to  refund  to  the  plaintiff. 

New  trial  denied. 


CARR  v.  STEWART. 

58  Ind.  581.— 1877. 

The  appellee  sued  the  appellant  upon  a  promissory  note,  assigned 
by  Moore  to  appellee.  The  second  paragraph  of  the  answer  sets 
forth  a  claim  against  the  appellee,  which  is  stated  in  the  opinion. 

HowK,  J. — *  *  *  *  j|.  appeared  from  a  bill  of  exceptions,  ■ 
properly  in  the  record,  that  the  appellant  offered  to  prove  on  the 
trial,  by  his  own  evidence,  that  he  had  paid,  by  mistake,  the  sum 
of  $20.75  ^s  taxes  on  certain  lands,  which  he  had  before  that  time 
conveyed  to  said  Moore,  the  payee  and  endorser  of  the  note  in  suit ; 
that,  after  the  appellant's  conveyance  to  said  jNIoore  of  said  lands, 
they  were  not  transferred  and  assessed  for  taxation,  in  the  name  of 
said  Moore,  as  they  ought  to  have  been,  but  they  continued  to  be 
assessed  for  taxation,  in  the  appellant's  name ;  and  that,  when  he, 
the  appellant,  paid  the  taxes  on  his  own  lands,  of  which  he  had 
about  2,000  acres  assessed  to  him,  he,  by  mistake,  paid  the  taxes  on 
Moore's  lands,  to  the  amount  of  $20.75,  without  noticing  that 
Moore's  lands  were  still  assessed  to  him  for  taxation  ;  and  that  this 
payment  was  made  by  the  appellant  before  he  had  any  notice  of  the 
assignment  by  Moore  of  the  note  in  suit. 

These  were  the  facts  which  the  appellant  offered  to  prove  on  the 
trial,  by  his  own  evidence ;  and,  upon  these  facts,  this  question 
arises :  Could  the  appellant  have  maintained  a  direct  action  against 
said  Moore,  upon  the  facts  stated,  to  recover  from  him  the  amount 
so  paid  by  the  appellant?  It  seems  very  clear  to  us  that  this  ques- 
tion must  be  answered  in  the  negative.  The  appellant  did  not  offer 
to  prove,  that  the  amoimt  so  paid  by  him  was  \)n\(\  with  the  knowl- 
edge and  consent,  or  upon  the  request,  of  said  Moore,  or  that  said 
Moore  had  subsequently  promised  to  repay  said  amount.     The  ap- 


/ 

IN    GENERAL.  243 

pellant's  payment  of  Moore's  taxes,  though  made  by  mistake,  must 
be  regarded  as  a  voluntary  payment ;  and  the  law  is  well  settled  in 
this  state,  that  such  payments  cannot  be  recovered  back.  Bevan  v. 
Tomlinson,  25  Ind,  253,  and  Shirts  v.  Irons,  28  Ind.  458. 

The  law  did  not  make  it  Moore's  duty  to  have  his  deed  from  the 
appellant  recorded  ;  and  if,  by  reason  only  of  Moore's  failure  to  have 
his  deed  recorded,  the  appellant  was  induced  or  caused  to  pay  the 
said  taxes  by  mistake,  this  fact  would  not,  in  our  opinion,  give  the 
appellant  a  cause  of  action  to  recover  from  said  Moore  the  taxes  thus 
paid.    *    *    *    * 


n 


BUFFALO  V.  O'MALLEY. 

61  Wis.  255.— 1884. 


Action  to  recover  the  sum  of  $40,  which  was  claimed  to  have 
been  overpaid  by  the  plaintiff  to  the  defendant  upon  a  contract  for 
the  transportation  of  tan-bark.  The  complaint  alleged  that  such 
overpayment  was  made  under  a  mistake  of  fact  as  to  the  quantity  of 
the  bark,  arising  from  ignorance  on  the  part  of  the  plaintiff  as  to  the 
manner  of  piling  and  measuring  tan-bark  for  shipment. 

Cole,  C.  J. — In  whatever  light  this  case  is  considered,  we  think 
the  motion  for  a  non-suit  should  have  been  granted.  There  is  no 
proof  of  fraud  in  the  transaction,  and  as  little  of  any  mistake  of  fact 
for  which  the  plaintiff  is  entitled  to  relief.  The  defendant  was  to  be 
paid  at  the  rate  of  two  dollars  per  cord  for  carrying  the  bark  in 
question  from  the  place  of  shipment  to  Duluth.  There  is  no  dis- 
pute but  that  this  was  the  agreement.  Now,  the  contention  of 
plaintiff  is,  that  under  a  mistake  as  to  the  quantity,  he  paid 
the  defendant  for  transporting  sixty  cords,  when  there  was  only 
forty  cords  according  to  the  Duluth  measurement.  But  there  is  not 
a  scintilla  of  proof  that  the  quantity  of  bark  was  to  be  ascertained 
or  determined  according  to  the  manner  of  piling  and  measuring  tan- 
bark  at  Duluth.  It  does  not  appear  that  either  party  so  understood 
the  contract  as  to  the  carriage.  The  plaintiff  admitted  that  he  meas- 
ured the  bark  himself,  when  it  was  piled  on  the  bank,  and  that 
there  were  sixty-three  cords.  When  he  paid  for  it  he  thought  it 
would  probably  not  fall  short  more  than  three  cords.  He  supposed 
a  cord  of  bark  was  a  pile  eight  feet  long,  four  feet  high  and  four 
feet  wide,  as  it  is.  So,  on  the  bank  where  the  bark  was  piled,  it 
actually  measured  sixty-three  cords,  to  the  knowledge  of  the  plain- 
tiff. But  the  plaintiff  seems  to  have  been  ignorant  of  the  fact  that 
where  bark  was  curled  badly,  as  his  bark  was,  it  was  customary  to 
make  allowance  for  it  in  the  measurement  when  sold ;  or  to  pile 
the  bark  tight  by  tramping  it  down  and  filling  up  the  holes.  And 
this  was  what  caused  the  shrinkage  in  the  bark  when  it  was  piled  at 
Duluth  for  sale. 


244  MISTAKE   OF    FACT. 

But,  as  we  have  said,  there  is  not  a  particle  of  evidence  that 
the  defendant  agreed  to  transport  the  bark  for  two  dollars  per  cord 
according  to  Duluth  measurement.  No  such  contract  was  made. 
Upon  what  ground,  then,  can  the  plaintiff  claim  the  right  to  recover 
back  part  of  the  money  which  he  paid  the  defendant  for  transporta- 
tion ?  There  was  sixty  cords  or  more  according  to  the  bank  measure- 
ment, and  the  plaintiff  admits  that  he  was  to  pay  at  the  rate  of  two 
dollars  per  cord  for  carrying  it  to  Duluth.  Suppose  a  part  of  the 
bark  had  been  rejected  by  buyers  in  Duluth  because  not  merchant- 
able, could  it  be  claimed  the  defendant  must  lose  his  transporta- 
tion of  the  unsalable  bark?  There  would  be  quite  as  much  reason 
in  claiming  that  the  defendant  should  stand  the  loss  in  the  case 
supposed,  as  there  is  in  saying,  upon  the  testimony  in  the  record, 
he  should  be  paid  for  only  forty  cords  because  there  was  a  shrink- 
age of  twenty  cords  when  it  was  piled  as  required  in  the  Duluth 
market.  In  truth,  the  evidence  shows  that  there  was  no  mistake  as 
to  the  bank  measurement,  and  we  must  assume,  in  the  absence  of  all 
proof  to  the  contrary,  that  the  parties  contracted  with  reference  to 
that  measurement.  It  follows  from  this  that  there  was  no  over- 
payment. 

Now,  to  entitle  the  plaintiff  to  recover,  he  was  bound  to  prove, 
either  that  there  was  a  mistake  in  the  bank  measurment,  that  there 
was  not  sixty  cords  as  there  piled,  or  that  the  defendant  agreed  to 
carry  the  bark  for  two  dollars  per  cord  according  to  the  Duluth 
measurement.  Neither  case  was  established  by  the  evidence.  It  is 
needless  to  observe,  courts  do  not  relieve  against  every  mistake  a 
party  may  make  in  his  business  transactions.  A  mistake  in  a  matter 
of  fact,  to  be  the  ground  of  relief,  must  be  of  a  material  nature,  in- 
ducing or  influencing  the  agreement,  or  in  some  matter  to  which 
the  contract  is  to  be  applied.  It  is  obvious  that  the  mistake  which 
the  plaintiff  made  was  in  supposing  that  curled  bark,  piled  in  the 
loose  manner  his  bark  was  piled,  would  hold  out  in  measure  when 
piled  as  dealers  required.  But  this  was  a  mistake  as  to  a  collateral 
fact,  which  had  nothing  to  do  with  the  contract  of  carriage.  It  is 
said  the  plaintiff  paid  for  the  carriage  upon  the  belief  that  there 
was  sixty  cords  of  it,  and  that  this  belief  was  founded  upon  his 
having  measured  the  bark  on  the  bank.  He  certainly  was  not 
mistaken  as  to  the  quantity  of  the  bark  on  the  bank,  but  was  mis- 
taken in  supposing  that  a  dealer  would  take  it  at  Duluth  piled  in 
the  manner  he  had  piled  it. 

It  is  said  that  a  cord  of  bark,  ex  vi  termini,  implies  a  cord,  or  128 
cubic  feet ;  but  the  parties  evidently  did  not  use  the  word  in  such  a 
sense  when  they  were  talking  about  the  quantity  on  the  settlement 
for  the  transportation  at  Duluth.  They  referred  to  the  measurement 
on  the  bank — the  number  of  cords  as  the  bark  was  there  piled  ;  and 
the  proof  is  entirely  conclusive  that  payment  was  made  with  refer- 
ence to  that  measurement.  It  is  certainly  true  that  the  bark  was  not 
there  piled  in  as  solid  and  compact  a  manner  as  the  Duluth  dealers 
required  it  to  be;  but  what  of  that?    There  was  no  mistake  of  fact 


IN    GENERAL.  245 

as  to  the  bank  measurement  when  payment  was  made,  and  no  ground 
for  relief  shown. 

It  follows  from  these  views  that  the  non-suit  should  have  been 
granted. 


HARRIS  AND  Another,  Assignees  of  CARTER  v.  LOYD. 

5  Mees.  &  W.  (ExcH.)  432.— 1839. 

Assumpsit  for  money  had  and  received.  Plea,  non-assumpsit. 
At  the  trial  before  Lord  Denman,  C.  J.,  at  the  last  Warwick  Assizes, 
the  plaintiffs,  who  sued  as  assignees  of  Carter  under  a  trust-deed 
for  the  benefit  of  creditors,  sought  to  recover  from  the  defendant, 
the  sheriff  of  the  county  of  Warwick,  the  sum  of  £57,  being  the 
amouHt  of  an  execution  levied  on  the  goods  of  Carter.  It  appeared 
that  the  assignment  to  the  plaintiffs  was  executed  on  the  5th  of  June, 
1838.  On  the  same  day,  but  before  the  execution  of  the  assignment, 
a  writ  of  H.  fa.  against  the  goods  of  Carter  was  delivered  to  the 
sheriff's  agent  in  London,  and  a  warrant  granted  thereon,  under 
-w^hich  the  officer  took  possession  on  the  6th.  The  plaintiffs,  in 
order  to  release  the  goods,  paid  the  officer  the  amount  of  the  levy^ 
under  protest,  and  he  thereupon  withdrew  from  possession.  It  sub- 
sequently turned  out  that  Carter  had  committed  an  act  of  bank- 
ruptcy on  the  2d  of  June,  on  which  a  fiat  issued  on  the  i8th,  and  the 
plaintiffs  thereupon  brought  this  action  to  recover  back  the  money 
so  paid  to  the  sherift"s  officer,  as  having  been  paid  under  a  mistake 
of  fact,  they  not  having  at  the  time  had  any  knowledge  of  the  act 
of  bankruptcy.  The  Lord  Chief  Justice  was  of  opinion  that  this 
was  not  such  a  mistake  of  fact  as  entitled  the  plaintiffs  to  recover 
back  the  money,  and  accordingly  directed  a  non-suit,  but  gave  leave 
to  the  plaintiffs  to  move  to  enter  a  verdict  for  £57.  In  Easter  term, 
Balguy  obtained  a  rule  nisi  accordingly. 

Lord  Abinger,  C.  B. — I  am  of  opinion  that  this  rule  ought  to  be 
discharged.  The  plaintiff's  appear  to  have  been  mere  volunteers. 
Suppose  the  friends  of  the  debtor  had  paid  the  money,  and  the 
possession  of  the  goods  had  been  thereupon  delivered  back  to  him ; 
could  they  have  recovered  it  back,  upon  its  afterwards  turning  out 
that  he  had  previously  committed  an  act  of  bankruptcy  ?  The  plain- 
tiffs claim  under  a  deed  of  assignment,  and  pay  the  money,  suppos- 
ing that  under  it  they  have  a  right  to  the  goods ;  in  that  they  are 
mistaken.  But  the  goods  w^ere  liable  to  seizure ;  the  property  in 
them  was  not  indeed  divested  by  the  writ,  and  the  trustees  might 
take  them,  but  only  subject  to  the  right  of  the  execution  creditor. 
Then  it  is  said  the  delivery  of  the  writ  was  not  to  the  sheriff,  but 
only  to  his  agent  in  London ;  I  think  that  makes  no  difference  what- 
ever.    The  short  answer,  however,  to  the  action  is,  that  the  money 


A 


246  MISTAKE   OF    FACT. 

was  not  paid  under  a  mistake  of  fact,  but  upon  a  speculation,  the 
failure  of  which  cannot  entitle  the  plaintiffs  to  recover  it  back. 

Alderson,  B, — This  is  money  paid,  not  under  a  mistake,  but 
under  a  bargain.  True,  it  turns  out  to  be  a  bad  bargain ;  but  that 
will  not  afifect  its  validity.  But  further,  the  money  is  paid  to  the 
sheriff  for  the  purpose  of  being  paid  over  to  the  execution  creditor, 
subject  only  to  the  plaintiffs'  supposed  right  under  the  deed.  By 
the  delivery  of  the  writ  to  the  sheriff  the  goods  are  bound,  and  the 
property  in  them  cannot  afterv/ard  be  transferred  by  the  debtor, 
except  subject  to  the  interest  of  the  execution  creditor.  There  can 
be  no  doubt  that  the  delivery  to  the  deputy  in  London  is  a  delivery 
to  the  sheriff;  the  deputy  is  appointed  for  that  very  purpose.  The 
plaintiffs  were  wrong,  and  the  sheriff  right,  at  the  time  of  the 
payment,  and  it  was  the  duty  of  the  sheriff  to  pay  over  the  money  to 
the  execution  creditor.  Can  it  be  argued,  that  after  such  payment 
over,  he  can  be  compelled  to  refund  it  ?  I  think  not.  I  am  of  opinion, 
therefore,  that  the  rule  ought  to  be  discharged. 

GuRNEY,  B.,  and  Maule,  B.,  concurred. 


n/ 


Rule  discharged. 


EDWARDS  ET  AL.  V.  HARDWOOD  MANUF'G  CO. 

59  Minn.  178. — 1894. 


GiLFiLLAN,  C.  J. — The  action  is  to  recover  the  price  of  nineteen 
carloads  of  barrel  staves  sold  and  delivered  by  plaintiffs  to  de- 
fendant free  on  board  cars.  The  answer  denies  the  sale  of  more 
than  fifteen  carloads,  and  sets  up  as  counterclaims :  First,  an  over- 
payment by  mistake  when  paying  for  the  fifteen  carloads ;  and, 
second,  that  plaintiffs  shipped  to  it  four  carloads  which  it  had  not 
ordered,  and  that  it  paid  the  freight  and  other  charges,  notifying 
plaintiffs  that  it  would  try  to  dispose  of  the  four  carloads  for  them, 
if  desired.  The  communications  between  the  parties  were  entirely 
by  letters  and  telegrams.  In  respect  to  the  number  of  carloads  de- 
fcndr.nt  ordered  sent  to  it,  the  letters  and  telegrams  are  not  so 
definite  and  precise  as  might  be  expected  in  business  transactions. 
This-,  we  think,  was  occasioned  to  some  extent  by  delay  of  plaintiff's 
in  making  shipments  of  the  carloads  ordered.  We  suspect  plaintiffs 
mistook  for  new  orders  what  was  intended  as  urging  them  to  hurry 
the  shipment  of  carloads  already  ordered,  or  as  directing  the  desti- 
nation of  those  already  ordered.  The  court  below  was  right  in 
finding  as  a  fact  that  only  fifteen  carloads  were  ordered  by  defendant, 
and  it  was  also  right  in  finding  as  a  fact  that  defendant,  through  an 
error  in  calculating,  made  an  ovcr])ayment  on  the  fifteen  carloads. 

Tn  respect  to  paying  the  freight  and  other  charges  on  the  four 
carloads,  the  defendant  stands  in  the  position  of  a  volunteer.  It 
could  recover  from  plaintiffs  the  sums  so  paid  only  if  paid  at  their 


IN    GENERAL.  247 

request,  express  or  implied,  or  if  they  subsequently  ratified  the  pay- 
ment as  made  in  their  beiialf.  There  is  no  finding-  of  any  such  re- 
quest or  ratification,  or  of  any  facts  that  would  amount  to  such, 
nor  would  the  evidence  sustain  any  such  finding-.  The  facts  are : 
The  plaintiffs,  claiming  the  four  carloads  had  been  ordered,  when 
in  truth  they  had  not  been,  forwarded  them  to  defendant,  who,  on 
their  arrival,  protesting  that  it  had  not  ordered  them,  received  them, 
paying  the  charges,  and  gave  notice  to  plaintiffs  that  it  would  hold 
them  subject  to  their  order.  The  plaintiffs  never  consented  that  it 
should  receive  and  hold  the  carloads  for  them,  nor  in  any  other 
way  than  as  its  own  property.  The  case  is  different  from  a  sale 
by  sample  or  description,  the  goods  to  be  forwarded  to  the  pur- 
chaser, in  which  case  there  is  implied  authority  to  the  purchaser  to 
receive  the  goods  so  far  as  necessary  for  proper  inspection,  and  to 
pay  whatever  transportation  charges  he  may  be  required  to  pay  in 
order  to  such  receipt  and  inspection.  The  court  below  will  modify 
its  direction  for  judgment  by  striking  out  the  amount  allowed  for 
freight  and  other  charges  on  the  four  carloads.^ 


SMITH  V.  GLENS  FALLS  INSURANCE  CO. 

62  N.  Y.  85.— 1875. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  affirming  a  judgment  in 
favor  of  plaintiff,  entered  upon  a  decision  of  the  court,  on  trial  at 
circuit  without  a  jury.  The  complaint  alleged  the  issuing  of  a  policy 
of  fire  insurance  by  defendant  to  one  John  White  and  damage  to 
the  property  by  fire ;  that  after  such  partial  loss  it  was  agreed  be- 
tween defendant  and  the  assured,  that  the  latter  should  surrender 
the  policy  to  be  canceled,  and  defendants  should  pay  $1,275  ^^""^^ 
the  unearned  premium,  and  that  the  policy  was  accordingly  sur- 
rendered and  canceled.  L^pon  this  contract  the  action  is  brought. 
The  policy  contained  a  condition  that  if  the  property  was  incum- 
bered by  mortgage  or  otherwise  it  must  be  expressed  in  the  policy 
or  the  insurance  would  be  void.  Evidence  was  given  tending  to 
show  that  there  were  incumbrances  on  the  premises  not  expressed 
in  the  policy.  But  there  was  no  finding  upon  that  subject  or  re- 
quest to  find. 

^  For  other  cases  of  refusal  to  allow  recovery  of  money  paid  where  there 
have  been  mistaken  or  disappointed  expectations,  see  Lemans  v.  Wiley,  92 
Ind.  436  (1883), — payment  of  mortgage,  expecting  reimbursement;  Wunsch 
V.  Boldt,  15  S.  W.  (Tex.  App.)  193  (1890). — payment  for  digging  well  that 
later  ran  dry;  Tyler  v.  Mayor,  7  N.  Y.  St.  Reporter  265  (1887), — payment  to 
city  for  water  to  be  used  in  distillery,  later  closed  by  United  States  revenue 
■officers;  and  see  also  Holt  v.  Thomas,  105  Cal.  273  (1894). 


< 


248  MISTAKE    OF    FACT. 

Church,  C.  J. — *  *  *  *  2,  The  settlement  and  contract  to 
pay  a  specified  sum  operates  as  a  waiver  of  any  warranty  in  the 
policy  unless  the  settlement  and  contract  were  procured  by  the 
fraud  of  the  assured,  and  this  is  not  found  and  scarcely  claimed.  It 
is  said  that  the  company  did  not  know  of  the  breach  of  the  war- 
ranty at  the  time  of  the  settlement.  The  answer  is,  that  when  the 
claim  was  made  for  the  loss  the  company  was  required  to  ascertain 
the  facts  as  to  any  breach  of  warranty.  If  they  saw  fit  to  pay  the 
claim,  or  compromise  it,  or  to  make  a  new  contract  without  such 
examination,  it  must  be  deemed  to  have  waived  it,  and  in  the  absence 
of  fraud  it  cannot  afterwards  avail  itself  of  such  breach.  It  cannot 
urge  payment  or  settlement  by  mistake  on  account  of  a  want  of 
knowledge  of  such  breach.  The  time  for  investigation  as  to  breaches 
of  warranty  is  when  a  claim  is  made  for  payment,  and  if  the  com- 
pany elects  to  pay  the  claim,  or  what  is  equivalent,  to  adjust  it  by 
an  independent  contract,  it  cannot  afterward,  in  the  absence  of  fraud, 
retract  or  fall  back  upon  an  alleged  breach  of  warranty.  (53 
N.  Y.  144.) 

There  is  no  finding  upon  which  an  allegation  of  fraud  in  obtaining 
the  new  contract  can  be  predicated.  The  judgment  must  be  af- 
firmed.^ 


I.      COMPROMISE  OR  SETTLEMENT. 

SEARS  V.  GRAND  LODGE  OF  ANCIENT  ORDER  OF 
UNITED  WORKMEN. 

163  N.  Y.  374. — 1900. 

Bartlett,  J. — On  the  31st  of  July,  1886,  one  Charles  R.  Baum- 
grass,  residing  in  the  city  of  Syracuse,  became  a  member  of  a  sub- 
ordinate lodge  of  defendant,  and  received  a  certificate  of  member- 
ship, which  provided,  in  the  event  of  his  death,  the  defendant  would 
pay  to  his  wife,  Mary  A.  Baumgrass,  the  sum  of  $2,000.  On  Septem- 
ber 28,  1886,  Baumgrass  disappeared,  and  was  not  seen  or  heard 
from  thereafter  until  April  15,  1896,  a  period  of  nearly  ten  years.  In 
the  meantime  important  transactions  and  negotiations  had  taken 
place  affecting  the  rights  of  the  parties.  Mrs.  Baumgrass,  the  benefi- 
ciary, was  advised  to  rest  upon  her  rights  until  seven  years  had 
elapsed,  when  she  might  proceed  under  the  legal  presumption  that 
her  husband  was  dead.  She  waited  about  nine  years,  and  then 
brought  an  action  against  defendant  on  the  23d  of  September.  1895, 
to  recover  $2,000  under  the  certificate  of  insurance.  On  the  26th  day 
of  March,  1896,  and  before  the  action  was  tried,  she  entered  into  an 

^  Scmhle  accord,  Stache  v.  Tns.  Co.,  49  Wis.  89  (1880)  ;  and  see  also  Berk- 
shire Milt.  Fire  Ins.  Co.  v.  Sturgis,  13  Gray  177  (1859),  Hartford  Live  Stock 
Ins.  Co.  V.  MaUhews,  102  Mass.  221   (1869;. 


COMPROMISE.  249 

agreement  of  compromise  with  the  defendant,  under  which  her  suit 
against  it  was  discontinued,  without  costs.  The  agreement  recited 
the  facts,  and  provided  for  the  settlement  and  discontinuance  of  the 
action ;  that  the  defendant  should  pay  to  the  beneficiary  "the  sum  of 
$666  in  cash  promptly" ;  that  said  $666  "is  not  to  be  returned  in  any 
event";  that  $1,334  should  be  placed  by  defendant  in  the  hands  of  a 
trustee,  to  be  held  by  him  until  July  i,  1897,  subject  to  the  con- 
ditioii  that  if  before  that  time  the  defendant  should  produce  reason- 
able proof  that  the  insured  was  alive  the  money  so  deposited  was  to 
be  returned  to  it,  but  failing  in  such  proof  it  w-as  to  be  paid  to  the 
beneficiary,  and,  in  the  language  of  the  agreement,  "she  shall  take 
full  title  to  the  same."  Twenty  days  after  the  execution  of  this 
agreement,  and  before  the  defendant  had  made  the  absolute  pay- 
ment of  $666  as  agreed,  the  insured  was  proved  to  be  alive.  There- 
upon the  beneficiary  demanded  payment  of  the  $666,  which  was  re- 
fused, and  she  assigned  her  claim  under  the  agreement  of  com- 
promise to  the  plaintiff.  The  facts  are  undisputed.  The  special 
term  rendered  judgment  for  plaintiff,  which  was  reversed  by  the 
appellate  division  with  a  divided  court. 

The  defendant  rests  its  defense  on  the  legal  proposition  that  the 
agreement  on  which  plaintiff  seeks  to  recover  was  made  while  both 
parties  thereto  were  laboring  under  a  material  mistake  of  fact,  to 
wit,  the  supposed  death  of  the  insured,  and  is  therefore  unenforce- 
able. The  counsel  for  the  defendant  has  cited  us  to  many  authorities 
to  the  general  effect  that  where  parties  to  a  contract  have  entered 
into  it  under  the  impression  that  a  certain  state  of  facts  existed, 
which  proved  to  be  error,  equity  will  afford  relief.  This  is  a  sound 
proposition  of  law,  but  it  has  no  application  to  the  facts  in  this 
case.  The  material  facts  may  be  briefly  stated :  The  insured  dis- 
appeared absolutely,  leaving  his  wife  as  beneficiary  under  his  cer- 
tificate of  insurance  issued  by  the  defendant.  She  waited  nine  years, 
and  then  sued  to  recover  the  total  insurance  of  $2,000.  In  this 
situation  the  defendant  seeks  a  compromise.  It  is  not  unreason- 
able to  assume  that  the  defendant  regarded  the  chances  of  success 
in  the  litigation  as  decidedly  in  favor  of  the  plaintiff.  The  legal 
presumption  arising  at  the  end  of  seven  years  that  the  insured  was 
dead  had  existed  for  two  years.  What,  then,  was  there  to  com- 
promise in  the  action  then  pending?  Clearly,  but  one  thing  was 
dealt  with  or  could  be  in  the  agreement  of  settlement,  to  wit,  the 
possibility  that  the  insured  should  prove  to  be  alive.  That  this  was 
the  basis  of  compromise  upon  which  the  agreement  rested  is  perfectly 
apparent  on  the  face  of  the  instrument.  The  defendant  said  to  the 
beneficiary :  Give  us  sixteen  months'  more  time  to  prove  the  in- 
sured is  alive  and  discontinue  your  suit  at  once.  If  you  do  this, 
we  will  make  you  a  cash  payment  of  $666,  which  is  not  to  be  paid 
back  in  any  event,  and,  at  the  expiration  of  the  sixteen  months,  if 
we  fail  to  prove  the  insured  is  alive,  we  will  pay  you  $1,334,  which 
is  to  be  held  for  both  of  us  by  a  trustee  meanwhile,  and,  if  we  do 
prove  it,  the  money  is  to  be  returned  to  us. 


250  MISTAKE   OF    FACT. 

It  is  urged  that  there  is  no  consideration  for  this  agreement.  The 
discontinuance  of  the  action,  the  extension  of  time  in  which  de- 
fendant was  to  pay  the  insurance,  and  the  compromise  of  a  doubtful 
claim  were  a  sufficient  consideration. 

It  is  also  urged  that  the  trial  judge  found  that  when  the  agree- 
ment was  entered  into  both  parties  believed  the  insured  was  dead. 
It  was  also  found  that  notwithstanding  such  belief  the  contract 
recognized,  contemplated,  and  provided  for  the  possibility  of  the 
insured  being  alive.  It  is  to  be  kept  in  mind  that  the  present  action 
is  limited  to  the  cash  payment  that  was  to  have  been  made  under 
the  agreement,  and  in  regard  to  which  the  defendant  was  in  de- 
fault at  the  time  it  was  discovered  that  the  insured  was  alive.  This 
payment  should  have  been  made  when  the  contract  was  signed,  and 
it  was  then  distinctly  agreed  that  it  should  not  be  paid  back  "in  any 
event,"  which  meant  it  should  not  be  repaid  even  if  it  were  sub- 
sequently proved  that  the  insured  was  alive.  In  view  of  all  the  cir- 
cumstances, it  cannot  be  said  that  the  parties  entered  into  the  agree- 
ment laboring  under  a  mutual  mistake  of  fact.  Mr.  Pomeroy,  in  his 
work  on  Equity  Jurisprudence  (section  855,  2d  Ed.),  states  the  cor- 
rect rule  governing  this  case :  "Where  parties  have  entered  into  a 
contract  or  arrangement  based  upon  uncertain  or  contingent  events 
purposely  as  a  compromise  of  a  doubtful  claim  arising  from  them, 
and  where  parties  have  knowingly  entered  into  a  speculative  con- 
tract or  transaction,  one  in  which  they  intentionally  speculated  as  to 
the  result,  and  there  is  in  either  case  an  absence  of  bad  faith,  viola- 
tion of  confidence,  misrepresentation,  concealment,  and  other  in- 
equitable conduct  mentioned  in  a  former  paragraph,  if  the  facts 
upon  which  such  agreement  or  transaction  was  founded  or  the 
event  of  the  agreement  itself  turned  out  very  differently  from  what 
was  expected  or  anticipated,  this  error,  miscalculation,  or  disappoint- 
ment, although  relating  to  a  matter  of  fact  and  not  of  law,  is  not 
such  a  mistake,  within  the  meaning  of  the  equitable  doctrine,  as 
entitles  the  disappointed  party  to  any  relief,  either  by  way  of  can- 
celing the  contract  and  rescinding  the  transaction,  or  of  defense  to 
a  suit  brought  for  its  enforcement.  In  such  classes  of  agreements 
and  transactions  the  parties  are  supposed  to  calculate  the  chances, 
and  they  certainly  assume  the  risks."  Again,  in  section  849,  Mr. 
Pomeroy,  after  dealing  with  relief  where  a  party  is  mistaken  as  to 
his  legal  rights,  interests,  or  relations,  closes  with  these  words : 
"It  should  be  carefully  observed  that  this  rule  has  no  application  to 
compromises,  where  doubts  have  arisen  as  to  the  rights  of  the 
parties,  and  they  have  intentionally  entered  into  an  arrangement  for 
the  purpose  of  compromising  and  settling  those  doubts.  Such  com- 
promises, whether  involving  mistakes  of  law  or  fact,  are  governed 
by  special  considerations."  A  number  of  instructive  authorities  arc 
cited  by  the  learned  author  under  both  of  these  sections. 

It  may  be  observed,  in  this  connection,  that  the  trial  court  found 
that  there  was  no  fraud  on  the  part  of  the  beneficiary,  and,  substan- 
tially, that  she  had  acted  throughout  in  good  faith.    The  agreement 


COMPROMISE.  251 

was  in  furtherance  of  a  lawful  compromise,  and  enforceable  with- 
out regard  to  the  validity  of  the  beneficiary's  claim  under  the  orig- 
inal certificate  of  insurance.  Compromises  of  disputed  claims  fairly 
entered  into  are  final,  and  will  be  sustained  by  the  courts  without 
regard  to  the  validity  of  the  claims.  Wehrum  v.  Kuhn,  61  N.  Y. 
623 ;  White  v.  Hoyt,  73  N.  Y.  505 ;  Dunham  v.  Griswold,  100  N.  Y. 
224 ;  3  N.  E.  76 ;  Crans  v.  Hunter,  28  N.  Y.  389 ;  Mowatt  v.  Wright, 
I  Wend.  355.  The  defendant,  in  executing  the  agreement  of  com- 
promise, assumed  the  risk  and  calculated  the  chances  of  being 
placed  in  the  present  situation,  and  there  would  seem  to  be  no  reason 
in  law  or  public  policy  why  plaintiff  should  not  recover.  It  would 
be  a  harsh  rule,  indeed,  that  would  preclude  insurer  and  beneficiary 
nine  years  after  the  insured  had  disappeared  from  entering  into  an 
enforceable  agreement  of  compromise  under  the  state  of  facts  here 
disclosed.  The  judgment  of  the  appellate  division  should  be  reversed, 
and  the  judgment  of  the  trial  term  affirmed,  with  costs  to  the  plain- 
tiff in  all  the  courts. 

Parker,  C.  J.,  and  Martin,  Vann,  Cullen,  and  Werner,  JJ., 
concur.    Gray,  J.,  dissents. 

Judgment  reversed,  etc.^ 


RHEEL  V.  HICKS. 

25  N.  Y.  289.— 1862. 

Action  to  recover  back  money  as  paid  under  mistake.  On  the 
28th  of  February,  1856,  the  defendant,  who  was  the  superintendent 
of  the  poor  of  the  county  of  Dutchess,  was  notified  that  one  Louisa 
Hehr  was  pregnant  of  a  child,  likely  to  be  born  a  bastard,  and  he 
thereupon  applied  to  a  justice  of  the  peace  to  make  examination. 
The  justice  took  the  examination  of  the  woman  in  writing,  wherein 
she  testified,  under  oath,  that  she  was  so  pregnant,  and  that  Rheel, 
the  plaintifif,  was  the  father.  Rheel  was  arrested,  and  on  the  5th 
of  March,  1856  (and  before  the  examination  of  the  two  justices), 

*  Accord  as  to  effect  of  mistake  in  cases  of  compromise,  Stuart  v.  Sears, 
119  Mass.  143  (1875)  ;  Troy  v.  Bland,  58  Ala.  197  (1877)  ;  and  see  especially 
the  decision  in  Kowalke  v.  Milwaukee  Elec.  Ry.  Co.,  103  Wis.  472  (1899), 
and  in  Riegel  v.  Amer.  Life  Ins.  Co.,  153  Pa.  134  (1893).  In  the  Riegcl  case 
a  creditor  who  held  a  policy  for  $6,000  on  the  life  of  her  debtor,  whose 
whereabouts  were  unknown,  finding  it  difficult  to  pay  the  premiums,  made  an 
arrangement  with  the  insurance  company,  under  which  the  policy  was  sur- 
rendered and  a  paid  up  policy  for  $2,500  was  issued  by  the  company  and  ac- 
cepted by  her  in  lieu  of  the  policy  surrendered.  At  the  time  of  this  transac- 
tion both  parties  acted  on  the  supposition  that  the  assured  was  alive,  but  he 
had  then  been  dead  for  ten  days.  The  creditor  brought  a  suit  in  equity  to 
compel  the  reinstatement  of  the  policy,  and  it  was  held  that  the  trans- 
action was  not  in  the  nature  of  a  compromise,  but  made  under  a  mutual  mis- 
take of  fact,  and  the  policy  was  reinstated.  (Paxson,  Ch.  J.,  and  Mitchell, 
J.,  dissenting.) 


252  MISTAKE   OF    FACT. 

compromised  with  the  defendant  relative  to  the  support  of  such 
child.  At  the  request  of  Rheel,  the  matter  was  compromised  by  his 
paying  to  the  superintendent  $50  in  consideration  of  a  full  settle- 
ment and  release  for  the  child's  future  support.  It  appeared  on  the 
trial  of  the  action  (and  so  the  jury  found  specially),  that  Louisa 
Hehr  was  not  pregnant  on  the  28th  of  February,  1856;  that  she  was 
never  delivered  of  a  bastard  child  of  which  the  plaintiff  was  the 
father,  and  which  became  chargeable  to  the  county  of  Dutchess ; 
and  that  such  county  had  been  to  no  expense  or  damages  on  account 
of  the  woman  or  any  child  of  which  she  was  pregnant  in  February, 
1856.  The  only  witness  to  prove  that  there  was  no  pregnancy 
was  Louisa  Hehr  herself.  On  being  inquired  of,  why  she  testified 
before  the  justice  in  February,  1856,  that  she  was  pregnant,  she 
answered  that  she  believed  so  then.  Rheel  had  had  connection  with 
her  two  or  three  times,  in  November,  1855.  Upon  ascertaining  that 
there  had  been  no  pregnancy,  the  plaintiff  demanded  the  $50  of  the 
defendant,  who  refused  to  pay  it  back. 

The  plaintiff  had  judgment  for  the  $50,  with  interest  and  costs. 

Wright,  J. — *  *  *  *  There  can  be  no  doubt  of  the  general 
principle  that,  when  one  pays  money  without  any  legal  obligation  to 
do  so,  under  a  mistake  of  fact,  and  without  the  means  of  ascertain- 
ing the  truth,  he  may  recover  it  back.  The  cases  founded  on  mistake, 
says  Savage,  Ch.  J.,  in  Mowatt  v.  Wright  (l  Wend.  355),  seem  to 
rest  on  this  principle,  that  if  parties,  believing  that  a  certain  state 
of  things  exist,  come  to  an  agreement  with  such  belief  for  its  basis, 
on  discovering  their  mutual  error  they  are  remitted  to  their  original 
rights.  Error  of  fact  takes  place,  says  the  same  learned  judge, 
either  when  some  fact  which  really  exists  is  unknown,  or  some  fact 
is  supposed  to  exist  v/hich  really  does  not  exist.  The  question  is, 
whether  the  law,  as  to  the  payment  of  money  under  the  influence 
of  a  mistake,  applies  to  this  case.  I  think  it  does.  The  liability  of 
a  putative  father  for  the  support  of  his  bastard  child  is  created 
wholly  by  statute  (he  not  being  liable  at  common  law),  and  the 
remedy  there  prescribed  must  be  pursued.  The  statute  authorizes 
a  compromise  and  arrangement  with  the  putative  father  relative  to 
the  support  of  such  child.  The  compromise  under  the  statute  is 
merely  a  mode  of  getting  indemnity  on  the  part  of  the  county  for 
the  support  of  the  bastard.  Whether  the  superintendent  takes  a 
bond  or  a  sum  of  money,  he  but  indemnifies  the  county  against  an 
actual  or  impending  expense ;  and  when  there  has  been  no  expense 
to  the  county,  and  there  is  to  be  none,  against  which  the  money  was 
paid  as  an  indemnity,  then  the  money,  ex  aequo  ef  bono,  belongs  to 
the  person  paying  it.  The  plaintiff  was  charged  with  being  the  father 
of  a  child  likely  to  be  born  a  bastard,  of  which  Louisa  Hehr  was 
alleged  to  be  pregnant.  Roth  the  plaintiff  and  defendant  acted 
upon  an  erroneous  assumption  that  she  was  pregnant,  and  they  com- 
promised relative  to  the  support  of  the  child  that,  it  was  supposed, 
would  be  born  a  bastard  and  become  chargeable  to  the  county.  It 
is  true  that  this  compromise  and  settlement  was  made  after  the 


COMPROMISE.  253 

arrest  of  the  plaintiff,  and  after  lie  had  been  charii^ed  with  bein^  the 
father  of  the  child  ;  but  I  do  not  think  that,  because  the  matter  was 
in  process  of  legal  investigation,  the  plaintiff  was  concluded  by 
such  compromise  from  ever  afterwards  denying  the  pregnancy. 
The  fact  as  to  who  was  the  father  of  the  child  may  have  been 
waived  by  the  compromise,  but  not  the  vital  fact  which  gave  it  all 
its  force  and  without  the  existence  of  which  the  superintendent  had 
no  power  to  act,  viz.,  the  pregnancy  of  Louisa  Hehr.  There  was  no 
disagreement  or  compromise  between  the  plaintiff  and  the  defend- 
ant as  to  the  fact  of  pregnancy.  They  both  believed  and  acted  upon 
the  assumption  that  she  was  pregnant,  and  it  turns  out  that  they 
were  both  mistaken.  As  there  was  no  pregnancy,  the  county  has  not 
been  put  to  any  expense,  and  never  can  be,  and  as  the  plaintiff  paid 
his  money  to  indemnify  the  county  under  a  mistake  of  fact,  I  think 
he  was  entitled  to  maintain  this  action.  It  has  been  repeatedly  held, 
that  when  money  was  paid  under  a  mistake  which  there  was  no 
ground  to  claim  in  conscience,  the  party  may  recover  back. 

It  is  urged  that  this  action  cannot  be  maintained  against  the  de- 
fendant, for  the  reason  that  he  had  no  power  to  pay  the  money  back. 
The  superintendent,  in  compromising  with  the  plaintiff,  was  acting 
under  a  special  power  conferred  on  him  by  law,  and  the  money  was 
paid  to  him  in  the  first  instance  to  provide  for  the  child  that  was 
expected  to  be  born.  Bastards,  it  is  true,  are  supported  as  paupers, 
and  the  superintendent  has  no  power  to  retain  moneys  that  may  come 
into  his  hands,  and  disburse  them  for  the  support  of  the  poor.  He 
must  pay  over  such  moneys  to  the  coimty  or  into  the  poor  fund, 
and  then  draw  on  the  county  treasurer  for  all  necessary  expenses  in- 
curred in  the  discharge  of  his  duties.  It  did  not  clearly  appear  in 
this  case  that  the  defendant  had  paid  over  the  money  to  the  county 
or  into  the  poor  fund.  But  if  it  had,  it  would  have  made  no  dif- 
ference. I  entirely  concur  with  the  learned  judge  who  tried  the 
cause,  that  "when  it  was  ascertained  that  the  woman  had  not  been 
pregnant  and  that  all  parties  had  acted  under  a  complete  mistake  of 
the  fact,  as  the  defendant  would  no  longer  hold  the  money  for  the 
original  purpose,  he  simply  held  it  for  the  plaintiff.  He  had  then  no 
more  right  to  pay  the  money  to  the  county,  or  place  it  in  the  poor 
fund,  than  he  would  have  had  to  bestow  it  on  any  charitable  object. 
If  this  action  will  lie  at  all,  it  cannot  be  defeated  by  the  voluntary 
transfer  of  the  money  by  the  defendant  after  the  cause  of  action  had 
accrued." 

The  judgment  of  the  Supreme  Court  should  be  afifirmed.^ 

*  But  contra,  where  there  was  a  dispute  as  to  the  fact  of  pregnancy,  and 
compromise  of  the  dispute.   Thompson  v.  Nelson,  28  Ind.  431  (1867). 


/ 


-254  MISTAKE   OF    FACT. 


/t 


McKIBBEN  ET  AL.  V.  DOYLE. 
173  Pa.  St.  579.— 1896. 


Assumpsit  by  David  McKibben  and  James  Wiley  to  recover 
money  paid  to  Catharine  Doyle  by  mistake.  There  was  a  verdict 
for  plaintiffs,  by  direction  of  the  court,  and  defendant  appeals. 
Affirmed. 

Fell,  J. — The  defendant,  Catharine  Doyle,  claiming  to  own  the 
party  wall  between  her  premises,  No.  2009  Pepper  street,  and  the  ad- 
joining premises,  No.  201 1  Pepper  street,  obtained  an  injunction 
restraining  the  owner  of  No.  201 1  from  using  the  wall  without 
making  compensation  therefor.  After  the  injunction  had  issued,  the 
lot  No.  201 1,  with  the  unfinished  building,  was  sold  at  sheriff's  sale, 
and  purchased  by  Thomas  J.  Rose,  who  conveyed  it  to  the  plaintiffs. 
The  plaintiffs,  desiring  to  complete  the  building,  tendered  to  the 
defendant  the  price  of  the  party  wall.  She  declined  to  receive  the 
money  unless  they  would  pay  also  the  costs  of  the  injunction  pro- 
ceeding against  the  former  owner  of  the  property,  and  she  attempted, 
by  rule,  to  make  them  parties  to  the  proceeding.  At  the  hearing 
of  the  rule  to  show  cause  the  tender  was  again  made,  and  declined 
for  the  same  reason.  The  rule  was  discharged  November  25,  1893, 
and  on  January  3,  1894,  at  the  request  of  the  defendant,  she  was  paid 
in  full  for  the  wall.  It  was  subsequently  ascertained  that  the  de- 
fendant's grantor  had  reserved  the  party  wall,  and  that  she  had  no 
title  to  it,  or  right  to  compensation  for  it,  and  this  action  was 
brought  to  recover  back  the  money  which  the  plaintiff  had  paid  her. 

There  is  no  ground  for  the  argument  that  this  payment  was 
made  in  mistake  of  law,  or  in  settlement  or  compromise  of  a  doubt- 
ful right.  The  defendant  asserted  her  ownership  of  the  wall,  and 
the  plaintiffs,  relying  on  her  statement,  at  once  agreed  to  pay  for 
it,  and  tendered  the  price.  She  attempted  to  exact  the  payment  of 
the  costs  of  a  legal  proceeding  to  which  they  were  not  parties,  and 
for  which  they  were  not  liable.  They  refused  to  pay  the  costs,  and 
the  court  refused  to  make  them  parties  to  the  proceeding.  This  was 
the  only  litigation  to  be  compromised,  and  there  was  no  compromise 
of  it.  They  successfully  resisted  her  unfounded  demand,  and  the 
proceeding,  as  far  as  it  concerned  them,  was  ended.  Recognizing 
their  duty  to  pay  the  owner  of  the  wall,  and  relying  upon  her  asser- 
tion of  ownership,  they  paid  her.  It  was  a  pure  mistake  of  fact. 
The  defendant  sold  what  she  did  not  own.  There  is  nothing  to  take 
the  case  out  of  the  rule  that  money  erroneously  paid  under  a  mutual 
mistake  of  fact  may  be  recovered  back.  The  mere  omission  to  take 
advantage  of  means  of  knowledge  within  the  reach  of  the  party 
paying  does  not  prevent  a  recovery.  Notes  to  Marriot  v.  Hampton,  2 
.Smith,  Lead.  Cas.  414;  ATcrcdith  v.  Haines,  14  Wkly.  Notes  Cas. 
364.  It  was  said  in  the  latter  case,  'Tt  is  not_sufficient  to  prevent  a 
party  from  recovering  money  paid  by  him  under  a  mistake  of  fact. 


COMPROMISE.  255 

that  he  had  the  means  of  knowled.c^e  of  tne  facts,  unless  he  paid  it 
intentionally,  not  choosing  to  investigate  the  facts." 

Judgment  is  affirmed. 


WHEADON  V.  OLDS. 
20  Wend.  (N.  Y.)  174.— 1838. 

Assumpsit.  The  defendant  agreed  to  sell  to  the  plaintifif  from 
1,600  to  2,000  bushels  of  oats  at  49  cents  per  bushel.  The  delivery 
of  the  oats  was  commenced  by  removing  them  from  a  storehouse  to 
a  canal  boat ;  tallies  were  kept,  and  when  the  tallies  amounted  to 
500,  it  was  proposed  to  guess  at  the  remainder ;  and  after  a  while  it 
was  agreed  between  the  parties  to  call  the  whole  quantity  1,900 
bushels,  and  the  plaintiff  accordingly  paid  for  that  quantity  at  the 
stipulated  price.  When  the  oats  came  to  be  measured  it  was  ascer- 
tained that  there  were  only  1,488  bushels  delivered.  It  was  then 
found  that  the  mistake  had  happened  by  both  parties  assuming  as 
the  basis  of  the  negotiation  fixing  the  quantity  of  1,900  bushels,  that 
500  bushels  had  been  loaded  in  the  boat  at  the  time  when  they  under- 
took to  guess  at  the  residue,  whereas  in  fact  only  250  bushels  had 
been  loaded, — the  tallies  representing  half-bushels  and  not  bushels, 
and  that  the  parties  supposed  that  the  quantity  loaded  was  not  a 
quarter  of  the  whole  quantity.  The  vendor  refusing  to  refund  a 
portion  of  the  money  received  by  him,  this  action  was  brought  by 
the  purchaser,  who  declared  for  money  had  and  received.  The 
jury  found  a  verdict  for  the  plaintiff  for  $190. 

CoW'EN,  J. — *  *  *  *  The  mistake  as  proved  went  not  only  to 
the  quantity  measured,  but  the  jury  found,  under  the  charge  of  the 
judge,  that  relatively  it  influenced  the  entire  agreement  to  take  the 
oats  at  1,900  bushels.  One  ingredient  of  estimating  the  residue,  as 
talked  of,  was  the  assuming  that  the  supposed  500  bushels  was  one- 
fourth  of  the  pile,  which  would  operate  unfavorably  to  the  plaintiff, 
if  he  reasoned  from  the  size  of  the  smaller  to  that  of  the  larger  pile. 
Here  was  an  admitted  error,  which  certainly  influenced  the  conduct 
of  the  plaintiff  to  the  extent  of  250  bushels ;  and,  as  we  must  take  it 
on  the  finding  of  the  jury,  to  the  full  amount  which  the  oats  came 
short  of  the  1,900  bushels.  All  the  excess  of  payment  arose  from 
a  count  of  half-bushels  as  bushels.  And  the  only  question  in  the 
least  open  is,  whether  an  agreement,  based  on  that  mistake,  to  ac- 
cept the  oats  at  the  plaintiff's  own  risk  of  the  quantity,  shall  conclude 
him.  The  mistake  which  entitles  to  this  action  is  thus  stated  by  the 
late  Chief  Justice  Savage  from  the  civil  law :  "An  error  of  fact 
takes  place,  either  when  some  fact  which  really  exists  is  unknown, 
or  some  fact  is  supposed  to  exist  which  really  does  not  exist." 
Mowatt  V.  Wright,  i  Wend.  360.  He  cites  the  words  of  2  Ev. 
Poth.  437.   And" see  i  Dom.  248,  B  i,  tit.  18,  §  i,  pi.  (2d  Ed.  par. 


/ 


^256  MISTAKE   OF    FACT. 

1224)  I.  In  judging  of  its  legal  effect,  we  must  look  "to  the  regard 
which  the  contractors  have  had  to  the  fact  which  appeared  to  them  to 
be  true."  i  Dom.  250,  B.  i,  tit.  18,  §  i,  pi.  11  (2d  ed.  par.  1234). 
And  when  we  see  that  the  agreement  is  the  result  of  such  a  regard, 
or,  as  the  judge  said  to  the  jury,  is  based  upon  it,  I  am  not  aware  of 
any  case  or  dictum,  that,  because  part  of  the  agreement  is  to  take  at 
the  party's  own  risk,  or,  as  the  parties  expressed  it  here,  hit  or  miss, 
it  therefore  forms  an  exception  to  the  general  rule.  The  agreement 
to  risk  was,  pro  tanto,  annulled  by  the  errror.  The  money  was  paid 
under  a  contract  void  for  so  much  as  the  oats  fell  short  of  1,900 
bushels.  The  effect  would  have  been  very  different  nad  the  truth 
been  known  to  the  plaintiff.  See  Domat,  as  before  cited.  The  foun- 
dation of  the  arrangement  to  take  at  the  plaintiff's  risk  was  a  mis- 
reckoning,  one  number  being  put  instead  of  another,  "which,"  says 
Domat,  pi.  12  (2d  ed.  par.  1235),  "is  a  kind  of  error  in  fact  different 
from  all  other  errors,  in  that  it  is  always  repaired." 

The  motion  for  a  new  trial  is  denied.^ 


2.      PAYOR  S  KNOWLEDGE  OR  BELIEF. 

NATIONAL  LIFE  INSURANCE  CO.  v.  JONES.' 

I  Thomp.  &  C.  466  (N.  Y.  Supreme  Ct.,  Gen.  Term). — 1873. 

Appeal  from  a  judgment  for  the  defendant  dismissing  the  com- 
plaint at  the  Ontario  Circuit  after  trial  by  the  court  without  a  jury. 

The  action  was  brought  by  "The  National  Life  Insurance  Com- 
pany of  the  United  States  of  America,"  against  the  executor  and 
legatees  of  Emma  J.  Mumford,  deceased,  to  recover  back  $5,000 
paid  by  said  company  upon  a  policy  of  insurance  issued  by  it  upon 
the  life  of  Ira  C.  Alumford,  deceased,  and  payable  to  his  wife, 
Emma  J.  Mumford.  The  grounds  upon  which  recovery  was  sought 
were  that  the  policy  was  obtained  by  false  and  fraudulent  repre- 
sentations, suppressions  and  concealments,  and  by  fraudulent  war- 
ranties in  the  application. 

Talcott,  J. — '''■  *  ''■'•  *  In  the  case  before  us,  the  finding,  which 
seems  to  be  abundantly  sustained  by  the  evidence,  is  not  that  the 
party  paying  acted  under  the  "supposition"  or  "impression"  that  the 
policy  had  been  fairly  obtained,  but  the  precise  contrary,  and  that 
the  plaintiff,  at  the  time  of  the  payment,  actually,  not  only  believed, 
but  had  considerable  evidence  to  establish  the  existence  of  the  pre- 
cise state  of  facts  which  it  now  sets  up  to  rescind  the  payment.  The 
requirement  that,  in  order  to  defeat  such  an  action,  the  plaintiff 

*  Compare  Calkins  v.  Griswold,  Ti  Htin  208  (N.  Y.  Supreme  Ct.  1877). 
"  Affirmed  by  the  Ct.  of  Appeals  in  59  N.  Y.  649,  upon  the  opinion  of  Tal- 
cott, J.,  below. 


payor's  knowledge.  257 

must  have  paid  with  a  "full  knowledge  of  all  the  facts,"  which  is 
the  language  of  some  of  the  cases,  can  mean  nothing  more  than  full 
notice  of  all  the  facts,  and  a  confident  belief  in  their  existence ;  for 
actual,  personal  knowledge  could  rarely  be  attained.  If  the  party 
paying  has  notice  of  and  believes  in  the  existence  of  the  true  state 
of  facts,  he  has  not  paid  under  any  mistake  of  facts,  or  upon  the 
faith  of  any  false  state  of  facts. 

The  appellant's  counsel  seems  to  place  great  stress  upon  the  cir- 
cumstance that,  on  the  trial  of  this  case,  evidence  was  developed 
which  showed  quite  clearly  that  the  belief  of  the  plaintiff,  at  the  time 
of  the  payment,  that  the  policy  had  been  fraudulently  obtained,  was 
correct,  which  evidence  had  not  before  been  known  to  the  plaintiff, 
but  it  seems  to  us  this  is  not  at  all  material.  The  plaintiff  believing 
.that  a  good  defense  existed  to  the  demand  might  be  unwilling  to 
encounter  the  risk  of  undertaking  to  prove  it,  might  doubt  whether 
it  could  be  proved  Vv^ith  sufficient  clearness  to  secure  a  verdict,  and 
for  that  reason  have  concluded  that  it  was  better  to  pay  than  to  en- 
counter a  litigation  which  might  prove  unsuccessful.  In  such  case 
a  payment  is  not  made  under  a  mistake  of  fact,  but  upon  the  ground 
that,"  notwithstanding  the  fact,  it  is  for  the  interest  of  the  party 
paying  to  make  the  payment.  So,  too,  the  finding  that  the  payment 
was  made  not  in  reliance  upon  a  false  belief  as  to  the  facts,  but 
from  other  motives,  inclining  the  plaintiff  to  the  belief  that  it  was 
for  its  interest  to  assume  the  false  state  of  facts  to  be  true,  and  pay 
without  further  question  or  inquiry  is  a  sufficient  ground  for  sus- 
taining the  decision.  If  the  payment  be  not  solely  in  reliance  upon  a 
falsely  assumed  state  of  facts,  but  from  mixed  motives,  so  that  the 
payer,  while  not  believing  the  assumed  state  of  facts,  voluntarily 
waives  all  investigation  or  inquiry  in  view  of,  and  influenced  by  other 
motives  to  the  payment,  he  has  not  paid  on  the  faith  of  a  false  state 
of  facts,  and  thereby  influenced  to  the  payment,  but  upon  other 
considerations.     *     *     *     * 

The  rule  by  which  a  party  is  enabled  to  recover  back  money  paid 
under  a  mistake  of  fact  does  not  authorize  him  to  rescind  a  payment 
merely  because  he  has  changed  his  mind  in  regard  to  a  matter  of 
policy,  or  because  he  has  come  to  a  better  position,  so  far  as  the 
facilities  and  probable  result  of  a  defense  are  concerned,  but  is 
based  upon  the  idea  of  a  bona  fide  and  controlling  belief  in  the  ex- 
istence of  given  facts,  under  the  influence  of  which  he  has  been  in- 
duced to  make  the  payment.  Such,  according  to  the  findings  and  the 
evidence,  is  not  this  case. 

The  judgment  must  be  affirmed,  with  costs  of  appeal. 

Judgment  affirmed.^ 

^In  Guild  V.  Baldridge,  2  Swan  (Tenn.)  295,  302  (1852),  the  court  says: 
"Neither  can  recovery  be  resisted  on  the  ground  that  the  plaintiff,  at  the 
time  of  payment,  may  have  entertained  and  expressed  a  vague  belief,  rest- 
ing on  no  evidence,  and  amounting  to  nothing  like  conviction  or  moral 
certainty,  that  he  had  previously  paid  the  debt.'" — In  Chatfield  v.  Paxton,  2 
Woodruff's  Cases— 17 


258  MISTAKE    OF    FACT. 

KELLY  V.  SOLARL 

9  Mees.  &  W.   (ExcH.)   54. — 1841. 

Assumpsit  for  money  paid,  money  had  and  received,  and  on  an 
account  stated.  Plea,  non-assumpsit.  At  the  trial  before  Lord 
Abinger,  C.  B.,  at  the  London  sittings  after  Trinity  term,  it  ap- 
peared that  this  was  an  action  brought  by  the  plaintiff,  as  one  of  the 
directors  of  the  Argus  Life  Assurance  Company,  to  recover  from 
the  defendant,  Madame  Solari,  the  sum  of  £197  los,  alleged  to  have 
been  paid  to  her  by  the  company  under  a  mistake  of  fact,  under  the 
following  circumstances. 

Mr.  Angelo  Solari,  the  late  husband  of  the  defendant,  in  the 
year  1836  effected  a  policy  on  his  life  with  the  Argus  Assurance 
Company  for  £200.  He  died  on  the  i8th  of  October,  1840,  leaving 
the  defendant  his  executrix,  not  having  (by  mistake)  paid  the 
quarterly  premium  on  the  policy,  which  became  due  on  the  3d  of 
September  preceding.  In  November,  the  actuary  of  the  office  in- 
formed two  of  the  directors,  Mr.  Bates  and  Mr.  Clift,  that  the  policy 
had  lapsed  by  reason  of  the  non-payment  of  the  premium,  and  Mr. 
Clift  thereupon  wrote  on  the  policy,  in  pencil,  the  v/ord  "lapsed." 
On  the  6th  of  February,  1841,  the  defendant  proved  her  husband's 
will ;  and  on  the  13th,  applied  at  the  Argus  office  for  the  payment  of 
the  sum  of  £1,000,  secured  upon  the  policy  in  question  and  two 
others.  Alessrs.  Bates  and  Clift,  and  a  third  director,  accordingly 
drew  a  check  for  £987  los,  which  they  handed  to  the  defendant's 
agent,  the  discount  being  deducted  in  consideration  of  the  pay- 
ment being  made  three  months  earlier  than  by  the  rules  of  the  office 
it  was  payable.  Messrs.  Bates  and  Clift  stated  in  evidence,  that 
they  had,  at  the  time  of  so  paying  the  money,  entirely  forgotten 
that  the  policy  in  question  had  lapsed.  Under  these  circumstances, 
the  Lord  Chief  Baron  expressed  his  opinion,  that  if  the  directors 
had  had  knowledge,  or  the  means  of  knowledge,  of  the  policy  hav- 
ing lapsed,  the  plaintiff  could  not  recover,  and  that  their  afterward 
forgetting  it  would  make  no  difference ;  and  he  accordingly  directed 
a  non-suit,  reserving  leave  to  the  plaintiff  to  move  to  enter  a  verdict 
for  him  for  the  amount  claimed. 

East  471  (1709),  note,  Ashurst,  J.,  says:  "Where  a  payment  had  been 
made,  not  with  full  knowledge  of  the  facts,  but  only  under  a  blind  suspicion 
of  the  case,  and  it  was  found  to  have  been  paid  unjustly,  the  party  might 
recover  it  back  again." 

In  Frambcrs  v.  Risk,  2  III.  App.  499  (1877),  the  court  says  (p.  504)  :  "If 
a  party  be  about  to  pay  money  upon  a  supposed  state  of  facts,  and  he  appre- 
hend such  facts  do  not  exist  and  makes  his  objection  to  the  payment  on  ac- 
count of  mistake,  and  the  party  about  to  receive  the  money  proposes  to  have 
the  matter  tested  ancF  the  truth  ascertained,  and  the  vendee  refuses  to  apply 
the  tests  at  hand  and  chooses  to  pay  the  money  notwithstanding,  he  ought  to 
be  forever  barred  from  recovering  it  back." 


payor's  knowledge.  259 

Thcsigcr,  in  the  former  j:)art  of  this  term,  obtained  a  rule  nisi  ac- 
cordingly or  for  a  new  trial. 

Loud  Abinger,  C.  B. — 1  think  the  defendant  ought  to  have  had 
the  opportunity  of  taking  the  opinion  of  the  jury  on  the  question 
whether  in  reality  the  directors  had  a  knowledge  of  the  facts,  and 
therefore  that  there  should  be  a  new  trial,  and  not  a  verdict  for  the 
plaintiff;  although  I  am  now  prepared  to  say  that  I  laid  down  the 
rule  too  broadly  at  the  trial,  as  to  the  effect  of  their  having  had 
means  of  knowledge.  That  is  a  very  vague  expression,  and  it  is 
difficult  to  say  with  precision  what  it  amounts  to ;  for  example,  it 
may  be  that  the  party  may  have  the  means  of  knowledge  on  a  par- 
ticular subject,  only  by  sending  to  and  obtaining  information  from  a 
correspondent  abroad.  In  the  case  of  Bilbie  v.  Lumley,^  the  argu- 
ment as  to  the  party  having  means  of  knowledge  was  used  by  coun- 
sel, and  adopted  by  some  of  the  judges;  but  that  was  a  peculiar 
case,  and  there  can  be  no  question  that  if  the  point  had  been  left  to 
the  jury,  they  would  have  found  that  the  plaintiff  had  actual  knowl- 
edge. The  safest  rule  however  is,  that  if  the  party  makes  the  pay- 
ment with  full  knowledge  of  the  facts,  although  under  ignorance 
of  the  law,  there  being  no  fraud  on  the  other  side,  he  cannot  recover 
it  back  again.  There  may  also  be  cases  in  which,  although  he  might 
by  investigation  learn  the  state  of  facts  more  accurately,  he  de- 
clines to  do  so,  and  chooses  to  pay  the  money  notwithstanding;  in 
that  case  there  can  be  no  doubt  that  he  is  equally  bound.  Then  there 
is  a  third  case,  and  the  most  difficult  one, — where  the  party  had  once 
a  full  knowledge  of  the  facts,  but  has  since  forgotten  them.  I  cer- 
tainly laid  down  the  rule  too  widely  to  the  jury,  when  I  told  them 
that  if  the  directors  once  knew  the  facts  they  must  be  taken  still 
to  know  them,  and  could  not  recover  by  saying  that  they  had  since 
forgotten  them.  I  think  the  knowledge  of  the  facts  which  disen- 
titles the  party  from  recovering,  must  mean  a  knowledge  existing 
in  the  mind  at  the  time  of  payment.  I  have  little  doubt  in  this  case 
that  the  directors  had  forgotten  the  fact,  otherwise  I  do  not  believe 
they  would  have  brought  the  action ;  but  as  Mr.  Piatt  certainly  has 
a  right  to  have  that  question  submitted  to  the  jury,  there  must  be  a 
new  trial. 

Parke,  B. — I  entirely  agree  in  the  opinion  just  pronounced  by  my 
Lord  Chief  Baron,  that  there  ought  to  be  a  new  trial.  I  think  that 
where  money  is  paid  to  another  under  the  influence  of  a  mistake, 
that  is,  upon  the  supposition  that  a  specific  fact  is  true,  which  would 
entitle  the  other  to  the  money,  but  which  fact  is  untrue,  and  the 
money  would  not  have  been  paid  if  it  had  been  known  to  the  payer 
that  the  fact  was  untrue,  an  action  will  lie  to  recover  it  back,  and  it 
is  against  conscience  to  retain  it ;  though  a  demand  may  be  neces- 
sary in  those  cases  in  which  the  party  receiving  may  have  been 
ignorant  of  the  mistake.  The  position  that  a  person  so  paying  is 
precluded  from  recovering  by  laches,  in  not  availing  himself  of  the 

*  2  East  469. 


260  MISTAKE    OF    FACT. 

means  of  knowledge  in  his  power,  seems,  from  the  cases  cited,  to 
have  been  founded  on  the  dictum  of  Mr.  Justice  Bayley,  in  the  case 
of  Milnes  v.  Duncan  ;^  and  with  all  respect  to  that  authority,  I  do 
not  think  it  can  be  sustained  in  point  of  law.  If,  indeed,  the  money 
is  intentionally  paid,  without  reference  to  the  truth  or  falsehood 
of  the  fact,  the  plaintiff  meaning  to  waive  all  inquiry  into  it,  and 
that  the  person  receiving  shall  have  the  money  at  all  events,  whether 
the  fact  be  true  or  false,  the  latter  is  certainly  entitled  to  retain  it ; 
but  if  it  is  paid  under  the  impression  of  the  truth  of  a  fact  which  is 
untrue,  it  may,  generally  speaking,  be  recovered  back,  however 
careless  the  party  paying  may  have  been  in  omitting  to  use  due  dili- 
gence to  inquire  into  the  fact.  In  such  a  case  the  receiver  was  not 
entitled  to  it,  nor  intended  to  have  it. 

GuRNEY,  B.,  concurred. 

RoLFE,  B. — I  am  of  the  same  opinion.  With  respect  to  the  argu- 
ment, that  money  cannot  be  recovered  back  except  where  it  is  un- 
conscientious to  retain  it,  it  seems  to  me,  that  wherever  it  is  paid 
under  a  mistake  of  fact,  and  the  party  would  not  have  paid  it  if  the 
fact  had  been  known  to  him,  it  cannot  be  otherwise  than  unconsci- 
entious to  retain  it.  But  I  agree  that  Mr.  Piatt  has  a  right  to  go  to 
the  jury  again,  upon  two  grounds:  first,  that  the  jury  may  possibly 
find  that  the  directors  had  not  in  truth  forgotten  the  fact ;  and  sec- 
ondly, they  may  also  come  to  the  conclusion,  that  they  had  deter- 
mined that  they  would  not  expose  the  office  to  unpopularity,  and 
would  therefore  pay  the  money  at  all  events;  in  which  case  I  quite 
agree  that  they  could  not  recover  it  back. 

Rule  absolute  for  a  new  trial. ^ 


Park,  J.,  in  STANLEY  RULE  &  LEVEL  CO.  v.  BAILEY. 

45  Conn.  464. — 1878. 

We  think  the  finding  of  the  court  below,  that  the  money  sought 
to  be  recovered  in  this  suit  was  paid  by  the  plaintiffs  to  the  defend- 
ant through  misapprehension  of  the  facts  with  regard  to  their  obli- 
gation to  pay  it,  is  decisive  of  the  case.  It  is  conceded  that  the  plain- 
tiffs are  entitled  to  recover  a  part  of  the  amount,  and  we  think  it  is 
equally  clear  they  ought  to  recover  the  whole.  That  part  of  it  which 
is  in  dispute  was  paid  to  the  defendant  as  a  royalty  for  the  privi- 

>6B.  &C.  671. 

^In  Norman  v.  Will  (Ohio  Supreme  Ct.  1846),  5  West.  Law  Jour.  508 
(s.  c.  I  Oh.  Dec.  261),  whicli  was  an  action  to  recover  back  money  paid 
under  a  mistake  of  fact,  the  court  below  had  charged  the  jury  that  "if  the 
plaintiff  had  been,  previously  to  said  payment,  informed  of  the  note  having 
been  paid  by  Newton,  then  he  could  not  recover  it  back  again."  On  appeal 
Birchard,  J.,  says:  "According  to  the  instructions  of  the  court  below,  a  man's 
rights  would  dei)end  ui)on  the  strength  of  his  memory.    We  do  not  think  so." 


payor's  knowledge.  261 

lege  of  manufacturing-  and  selling  certain  articles,  under  certain 
patents,  of  which  the  defendant  previous  to  this  time  was  the  owner. 
The  money  was  paid  according  to  the  terms  of  a  certain  contract 
between  the  parties,  wherein  the  defendant,  for  the  consideration  of 
a  certain  royalty  to  be  paid  on  all  the  articles  covered  by  the  patents 
which  should  be  manufactured  and  sold  by  the  plaintiffs,  granted 
them  the  privilege  of  manufacturing  and  selling  them  during  the 
continuance  of  the  patents  and  any  extension  of  them.  The  plain- 
tiffs manufactured  and  sold  the  articles,  and  paid  the  royalty  ac- 
cording to  the  terms  of  the  contract.  In  the  meantime  some  of  the 
defendant's  patents  expired  and  were  not  extended,  but  the  plain- 
tiff's being  ignorant  of  the  fact  continued  to  pay  the  royalty  as  they 
had  done  before,  and  paid  the  sum  which  they  now  seek  to  recover 
on  patents  which  had  thus  expired.  The  defendant  knew  that  the 
patents  had  expired  and  had  not  been  renewed  at  the  time  he  re- 
ceived the  money ;  but  believing  that  he  had  the  right  to  receive  it 
under  the  contract,  did  not  state  the  fact  to  the  plaintiffs. 

It  further  appears  that  the  plaintiffs  paid  the  money,  believing 
that  the  patents  were  in  force,  and  that  they  would  not  have  paid  it 
had  they  known  the  facts.  But  it  is  said  that  they  had  the  means  of 
knowledge,  and  that  this  is  equivalent  to  knowledge  itself.  There 
may  be  such  full  and  complete  means  of  knowledge  as  to  be  equiva- 
lent to  knowledge  itself,  but  we  think  this  is  not  such  a  case.  The 
defendant  owned  the  patents.  He  was  in  the  employ  of  the  plain- 
tiffs. The  patents  were  on  a  large  number  of  articles ;  and  some  of 
them  were  covered  by  two  or  more  patents  of  different  dates.  The 
case  was  a  complicated  one,  and  required  thorough  examination  to 
determine  the  exact  fact.  It  would  naturally  be  expected  that  the 
defendant  would  keep  himself  informed  on  the  matter,  and  being 
in  the  employment  of  the  plaintiffs  would  inform  them  when  the 
patents  expired.  This  would  reasonably  be  expected  by  the  plaintiffs 
where  they  had  no  reason  to  suspect  dishonesty  in  the  defendant ; 
and  we  think  they  had  a  right  to  rely  on  what  would  ordinarily  be 
expected  under  the  circumstances.^ 

Mn  Rutherford  v.  Mclvor,  21  Ala.  750  (1852),  the  court  says  (p.  756)  :  "I 
cannot  yield  my  assent  to  the  proposition,  that  the  means  of  ascertaining  the 
real  facts  of  the  case  are  tantamount  to  actual  knowledge  of  them.  If  this 
were  the  rule,  then  it  would  be  but  rare  that  money  paid  by  mistake  could 
ever  be  recovered  back.  For  instance :  if,  in  the  settlement  of  an  account  a 
mistake  in  the  calculation  was  made,  it  could  not  be  afterward  corrected  by 
suit,  because  the  parties,  having  competent  knowledge  of  figures,  had  the 
means  of  knowledge ;  and  the  mistake  being  the  result  of  negligence,  rather 
than  the  want  of  knowledge,  the  parties  would  be  bound  to  abide  by  it." 
Accord,  Waite  v.  Leggett,  8  Cow.  (N.  Y.)   195  (1828). 

In  Norton  v.  Alarden,  15  Me.  45  (1838),  the  court  says  (p.  47)  :  "But  it  is 
insisted  that  the  plaintiff  had  the  means  of  correct  knowledge.  And  in  one 
sense  a  person  may  be  said  always  to  have  the  means  of  knowledge.  He  may 
have  access  to  books,  and  to  the  assistance  and  instructions  of  his  fellow  men. 
But  the  means  of  knowledge  which  the  law  requires  are  such  as  the  party 
may  avail  himself  of  as  then  present  without  c-alling  to  his  aid  other  assist- 
ance.    And  in  this  case  there   is  no  ground   for  inferring  that  the  plaintiff 


262  MISTAKE    OF    FACT. 

McARTHUR  v.  LUCE  et  al. 

43  Mich.  435.— 1880. 

Marston,  C.  J. — Luce  &  Co.,  in  demanding  that  McArthur  pay 
them  for  logs  cut,  as  they  supposed,  upon  their  land,  acted  in  entire 
good  faith.  They  had  a  survey  made,  and  according  thereto  the 
plaintiff  had  cut  logs  over  the  line.  When  the  claim  was  made  upon 
the  plaintiff  he  employed  a  surveyor  and  they  went  upon  the  land, 
and  plaintiff  then  became  satisfied  that  he  had  cut  and  taken  logs 
from  off  defendants'  land,  and  authorized  a  settlement  to  be  made, 
which  was  done.  This  was  in  1871,  and  all  parties  rested  in  the  be- 
lief that  a  correct  settlement  had  been  made  until  some  time  in  1875, 
when  a  new  survey  established  the  fact  that  no  logs  had  been  cut 
upon  defendants'  land,  and  this  action  was  brought  to  recover  back 
the  moneys  paid,  upon  the  claim  of  having  been  paid  under  a  mis- 
take of  fact. 

Where  a  claim  is  thus  made  against  another  who,  not  relying  upon 
the  representations  of  the  claimant,  has  the  opportunity  to  and  does 
investigate  the  facts,  and  thereupon  becomes  satisfied  that  the  claim 
made  is  correct  and  adjusts  and  pays  the  same,  I  think  such  set- 
tlement and  payment  should  be  considered  as  final.  If  not,  it  is  very 
difficult  to  say  when  such  disputed  questions  could  be  considered  as 
finally  settled,  or  litigation  ended.  In  the  settlement  of  disputed 
questions  where  both  parties  have  equal  opportunity  and  facilities 
for  ascertaining  the  facts,  it  becomes  incumbent  on  each  to  then 
make  his  investigation,  and  not  carelessly  settle,  trusting  to  future 
investigation  to  show  a  mistake  of  fact  and  enable  him  to  recover 
back  the  amount  paid.  One  course  encourages  carelessness  and 
breeds  litigation  after  witnesses  have  passed  beyond  the  reach  of  the 
parties :  the  other  encourages  parties  in  ascertaining  what  the  facts 
and  circumstances  actually  are  while  the  transaction  is  fresh  in  the 
minds  of  all,  and  a  final  and  peaceful  settlement  thereof.  Detroit 
Advertiser  &  Tribune  Co.  v.  Detroit,  43  Mich  116,  and  County  of 
Wayne  v.  Randall,  43  Mich.  137. 

The  judgment  must  be  affirmed  with  costs.  The  other  justices 
concurred.^ 

had  then  the  means  of  knowing  that  the:  true  lot  designated  in  the  bond  was 
not  the  one  examined.  He  does  not  appear  to  have  had  any  more  satisfactory 
means  of  knowledge  than  the  statements  of  the  defendant,  and  those  proved 
to  be  erroneous." 

^Accord,  Wheeler  v.  Hatheway,  58  Mich,  "jj  (1885). 


J 


payor's  knowledge.  263 

WEST  V.  HOUSTON. 
4  Harr.  (Del.)   170. — 1844. 

Appeal  from  the  judgment  of  a  justice  of  the  peace;  in  an  action 
of  assumpsit.  Pleas,  non-assumpsit,  etc.  Issues.  The  defendants 
below,  the  Messrs.  West,  orig'inally  brought  an  action  of  assumpsit 
in  this  court,  against  the  plaintiff  below,  R.  A.  Houston,  for  $90, 
and  recovered  $44.50.  The  costs  in  that  case  were  $15.15  ;  and  there 
was  no  affidavit  filed  to  enable  the  plaintiffs  to  recover  costs  under 
sec.  "^^y,  Dig.  351.  The  costs  were  erroneously  taxed  by  the  prothono- 
tary  in  making  up  the  record,  and  the  defendant  in  that  case  paid 
them,  supposing  that  the  plaintiffs  had  filed  an  affidavit  under  the 
above  section,  which  would  entitle  them  to  costs.  This  suit  was 
brought  to  recover  1)ack  the  costs  so  paid. 

The  Court  ordered  a  non-suit.  Where  there  is  a  payment  in  ignor- 
ance or  mistake  of  a  fact,  it  may  be  recovered  back,  unless  the  mis- 
take arises  from  the  negligence  of  the  party  to  examine  and  take 
notice  of  information  within  his  full  means  of  knowledge.  Here 
the  plaintiff  was  party  to  the  very  record  of  the  judgment  which  he 
was  paying,  which  record  showed  the  fact  he  now  alleges  he  was 
ignorant  of. 


WINDBIEL  v.  CARROLL. 
16  Hun  (N.  Y.)  ioi.— 1878. 

Appeal  from  a  judgment  in  favor  of  the  defendant,  entered  upon 
a  non-suit  directed  at  the  circuit.  Xavier  Misselbeck  and  Mary,  his 
wife,  executed  and  delivered  to  Davis  L.  Carroll,  defendants'  tes- 
tator, their  bond  conditioned  to  pay  the  sum  of  $1,200,  with  their 
mortgage  accompanying  the  same.  Thereafter  Xavier  and  Mary 
conveyed  said  real  estate  to  Charles  Windbiel,  this  plaintiff,  subject 
to  the  lien  of  t'his  mortgage,  he  assuming  the  payment  of  the  same. 
Both  Misselbeck  and  the  plaintiff  had  made  payments  an  said  bond 
before  such  conveyance  to  Windbiel.  On  June  10,  1876,  the  plain- 
tiff' paid  the  balance  claimed  by  the  testator.  Dr.  Carroll,  seven 
hundred  and  ten  dollars  and  some  cents.  At  that  time  plaintiff 
claimed  there  had  been  paid  upon  such  bond  and  mortgage  two 
sums  which  had  not  been  credited  thereon,  one  of  $90.30  and  the 
other  of  $164.66,  together  $254.96.  And  to  recover  said  two  sums 
so  alleged  to  have  been  overpaid,  this  action  was  brought.  On  the 
trial,  plaintiff  produced  a  receipt  for  $164.66,  given  by  Davis  L. 
Carroll  to  Xavier  Misselbeck,  which  amount  was  not  allowed  to  the 
plaintiff  when  he  made  the  above-mentioned  payment  on  the  bond 
and  mortgage. 

Learned,  P,  J. — When  the  plaintiff  paid  up  the  mortgage  to  Dr. 


264  MISTAKE    OF    FACT. 

Carroll,  he  "claimed  it  was  not  right  and  that  there  was  not  so  miKli 
due,"  He  claimed  that  there  had  been  an  overpayment  of  $200  more 
than  the  doctor  had  credited  him  on  the  bond  and  mortgage.  He 
said  that  he  would  pay  the  mortgage  and  would  commence  an  action 
against  the  doctor  to  recover  it  back.  There  was  a  dispute  between 
the  plaintiff  and  the  doctor  about  the  amount  due.  And  the  plain- 
tiff, when  he  paid  the  bond  and  mortgage,  told  the  doctor  tbat  he 
would  ascertain  whether  he  had  overpaid  him,  and  if  he  had  taken 
out  of  him  more  than  was  due,  he  would  sue  him.  This  is  the  testi- 
mony of  the  plaintiff's  own  witness,  and  it  is  not  contradicted.  Two 
or  three  days  afterward  the  plaintiff  commenced  this  action.  The 
plaintiff,  therefore,  when  he  paid  the  bond  and  mortgage,  knew  (or 
believed)  that  he  was  paying  more  than  was  owing.  The  very  fact 
on  which  he  now  seeks  to  recover  was  known  to  him  and  insisted 
upon  by  him  at  that  time,  and  he  made  the  payment  with  the  inten- 
tion of  suing  to  recover  part  of  it  back  again.  What  he  has  since 
discovered  (as  he  claims)  is  not  the  fact  that  $200  more  than  was 
credited  had  been  paid,  but  only  the  means  of  proving  that  fact. 

Ignorance  of  a  fact  is  one  thing ;  ignorance  of  the  means  of  prov- 
ing a  fact  is  another.  When  money  voluntarily  paid  is  recovered 
back,  it  is  because  there  was  a  mistake  as  to  some  fact.  But  here 
the  plaintiff  was  not  mistaken  as  to  the  fact.  Only  at  the  time  he 
did  not  know  how  to  prove  it.  The  subsequent  discovery  of  evi- 
dence to  prove  a  fact,  known  to  the  party  when  he  makes  the  pay- 
ment, cannot  authorize  a  recovery  back  of  the  money.  Such  a  prin- 
ciple would  be  most  dangerous. 

I  think  the  judgment  should  be  afffrmed,  with  costs.  Bockes,  J., 
concurred  ;  Boardman,  J.,  dissented.  Judgment  affirmed  with  costs. ^ 


3.      WHEN  NOT  AGAINST  CONSCIENCE  FOR  DEFENDANT  TO  RETAIN. 

KINGSTON  BANK  v.  ELTINGE. 

66  N.  Y.  625.— 1876. 

This  was  an  action  brought  to  recover  back  moneys  alleged  to 
have  been  paid  by  mistake. 

The  claim  of  the  plaintiff,  in  substance,  was  that  in  January,  1854, 
the  Huguenot  Bank,  of  which  defendant  was  president,  recovered 

Mn  Mowatt  v.  Wright,  i  Wend.  (N.  Y.)  355  (1828),  Mrs.  Wright  brought 
suits  for  a  claim  wliich  she  thought  well-founded.  The  court  said  (p.  365)  : 
"'l"he  defendants  believed  there  was  a  defense,  but  they  could  not  produce  the 
evidence  of  it,  like  the  case  of  the  lost  receipt  [Marriott  v.  Hampton,  7  T.  R. 
269]  :  they  therefore  paid  a  sum  of  money  as  the  easiest  and  cheapest  way  of 
settling  the  claim.  It  is  a  voliuitary  payment,  though  they  would  not  have 
made  it,  could  they  have  produced  the  evidence  of  their  title  at  the  time.  It 
is  now  too  late  to  call  the  settlement  in  question." 


NOT    AGAINST    CONSCIliXCE    TO    RETAIN.  265 

judgment  against  Nicholas  Elmendorf  and  others,  to  the  amount  of 
$6,351.98,  and  issued  executions  thereon  to  the  sheriff  of  Ulster 
county.  In  March,  1854,  plaintiff  recovered  judgments  against  said 
Elmendorf  and  others  to  the  amount  of  over  $15,000,  and  issued  exe- 
cutions thereon  to  said  sheriff.  Sometime  in  May,  1854,  after  the 
first  executions  had  run  out,  but  while  plaintiff's  were  still  in  life, 
the  sheriff  levied  upon  a  steamboat  belonging  to  Elmendorf  and 
subsequently  sold  it.  Plaintiff  and  defendant's  bank  supposing  the 
levy  to  have  been  made  during  the  life  of  the  latter's  execution, 
agreed  that  the  sheriff  might  take  the  notes  of  one  Van  Vechten, 
who  bid  off  the  steamboat,  for  the  amount  of  his  bid ;  subsequently, 
Van  Vechten  made  payment  on  the  notes,  which  were,  with  plain- 
tiff's assent,  and  under  said  mistaken  belief,  paid  over  to  defendant. 
This  was  substantially  the  aspect  of  the  case  as  it  appeared  upon  a 
former  trial,  where  a  judgment  was  rendered  for  defendant  which 
was  reversed  by  this  court.  (See  40  N.  Y.  391.)^  The  court  there 
found  that  the  moneys  paid  to  defendant's  bank  were  the  proceeds 
of  the  sale  of  the  steamboat.  The  referee,  however,  before  whom 
the  second  trial  was  had,  did  not  find  that  the  moneys  paid  to  the 
Huguenot  Bank  were  the  proceeds  of  the  sale  of  the  steamer,  but 
on  the  contrary  that  its  judgments  were  paid  direct  to  its  attorney 
by  Van  Vechten,  partly  out  of  funds  belonging  to  Elmendorf  and 
the  balance  by  his  own  note,  nothing  being  said  about  the  bid  or  the 
notes  given  therefor,  and  the  same  not  having  been  presented ;  that 
Van  Vechten,  on  such  payment,  demanded  satisfaction  of  the  judg- 
ments. He  also  found  that  none  of  the  funds  used  to  pay  the  exe- 
cutions belonged  to  plaintiff.  The  court  here  held,  that  the  evidence 
was  sufficient  to  sustain  the  findings,  and  that,  even  if  the  payment 
was  made  to  defendant's  bank  under  a  mistake  of  fact  in  regard  to 
the  executions,  the  moneys  paid  could  not  be  recovered  back  by  the 
plaintiff,  as  neither  plaintiff  nor  the  sheriff  ever  had  possession  or 
title  thereto.  It  also  appeared,  and  the  referee  found  in  substance, 
that  Elmendorf  was  the  owner  of  real  estate  in  Ulster  county,  upon 
wdiich  the  Huguenot  Bank  judgments  were  prior  liens,  and  which 
subsequent  to  their  satisfaction  was  sold  upon  plaintiff's  and  other 
executions,  and  that  plaintiff  received  upon  its  executions,  out 
of  the  proceeds  of  such  sale,  an  amount,  at  least,  as  much 
as  was  paid  to  and  received  by  the  Huguenot  Bank,  as  aforesaid, 
and  which,  if  its  executions  had  remained  in  the  hands  of  the 
sheriff  and  had  not  been  returned  satisfied,  it  would  have  been  en- 
titled to  thereon.  Held,  that  as  the  action  was  an  equitable  one, 
presenting  the  question  as  to  which  party  the  money  ex  aequo  et 
bono  belonged  (Buel  v.  Boughton.  2  Den.  91,  93;  Barber  v.  Cary, 
II  Barb.  551,  552;  Butler  v.  Wright,  6  Wend.  284;  Eddy  v.  Smith, 
13  id.  488,  490;  Price  v.  Neal,  3  Bur.  1354),  and  as  the  plaintiff  w^as 
not  entitled  to  recover  unless  it  was  against  conscience  for  defend- 
ant to  retain  the  money,  and  as  defendant  received  no  more  than  his 

*  Reported  herein  at  p.  271. 


266  MISTAKE   OF   FACT. 

due  and  thereupon  relinquished  a  hen  from  which  plaintiff  derived 
full  as  much  benefit  as  if  it  had  itself  received  the  money,  plaintiff, 
on  this  ground  alone,  was  not  entitled  to  recover. 

Also,  held,  that  it  was  not  necessary  to  set  up  and  prove  these 
facts  as  a  counter-claim ;  that  they  were  admissible  as  showing  that 
the  equities  were  with  the  defendant. 

Miller,  J.,  reads  for  affirmance.^ 


BUEL  V.  BOUGHTON. 
2  Den.   (N.  Y.)  91.— 1846. 

Error  to  the  Onondaga  C.  P.  Buel  sued  Boughton  for  money  had 
and  received  to  his  use ;  and  the  case  was  substantially  as  follows : 
One  Charlotte  Smith  held  a  bond  against  the  plaintiff  for  $2,650, 
payable  in  six  equal  annual  instalments,  with  annual  interest  from 
April  I,  1843.  James  H.  Fuller,  in  right  of  his  wife,  owned  and  had 
an  interest  in  the  bond  to  the  amount  of  $498.10.  On  the  first  day 
of  April,  1843,  the  plaintiff  gave  James  H.  Fuller  his  negotiable 
promissory  note  for  said  sum  of  $498.10,  having  more  than  two 
years  to  run.  The  plaintiff  agreed  to  make  the  note  payable  zmth 
interest;  but  interest  was  left  out  of  the  note  by  mistake  in  drawing 
it.  On  the  day  of  the  date  of  the  note  Charlotte  Smith  indorsed 
and  receipted  the  amount  of  the  note  on  the  bond.  On  the  day  the 
note  was  given,  James  H.  Fuller  transferred  it  to  Almerin  Fuller, 
who  indorsed  the  amount  of  the  note  on  a  bond  which  he  held  against 
James,  which  bond  was  on  interest.  This  was  done  on  the  supposi- 
tion that  the  note  was  also  on  interest.  About  twenty  days  afterward 
Almerin  Fuller  transferred  the  note  to  the  defendant,  who  indorsed 
the  amount  of  the  note,  and  of  the  interest  which  was  supposed  to 
have  then  accrued  upon  it,  on  a  bond  which  he  held  against  Almerin 
Fuller,  which  bond  was  on  interest.  On  the  23d  of  May,  1845,  the 
plaintiff  paid  the  note  to  the  defendant,  and  by  mistake,  supposing 
the  note  to  have  been  written  with  interest,  paid  the  defendant  $71.20 
for  interest  on  the  note,  and  took  it  up.  The  plaintiff  brought  this 
suit  to  recover  back  the  sum  so  paid  by  mistake  for  interest.  The 
defendant  set  up  the  other  facts  which  have  been  mentioned  as  an 
answer  to  the  action ;  and  the  court  decided  in  his  favor.  A  ver- 
dict and  judgment  having  passed  for  the  defendant,  the  plaintiff 
now  brings  error  on  a  l)ill  of  exceptions. 

By  the  court,  Bronson,  C.  J. — This  is  a  remarkable  case.  The 
plaintiff  first  omitted,  by  mistake,  to  make  the  note  payable  with  in- 
terest, as  he  should  have  done ;  and  then,  by  another  mistake,  he 
corrected   the   first   error  by  paying  interest,  when   the  note  itself 

'  Reported  among  the  ".Memoranda  of  causes  not  reported  in  full."  Accord, 
Levy  V.  Terwiiliger,  10  Daly  (N.  Y.  C.  P.)   194  (1881). 


NOT    AGAINST    CONSCIENCE    TO    RETAIN.  267 

imposed  no  such  obligation.  And  thus  by  two  bkinders  the  parties 
have  come  out  right  at  last.  Or  at  least,  the  plaintiff  has  paid  no 
more  than  he  ouglit  to  pay ;  and  there  would  be  no  ground  for  an 
action  to  recover  back  the  money  paid  for  interest,  if  the  payment 
had  been  made  to  James  H.  Fuller,  the  payee  of  the  note,  against 
whom  the  first  mistake  was  made.  One  party  would  in  that  case 
have  paid,  and  the  other  received  just  what  in  justice  and  honesty 
ought  to  be  paid  and  received. 

But  the  payment  was  not  made  to  James  H.  Fuller;  and  this 
leads  me  to  notice  that  not  only  the  plaintiff  and  James  H.  Fuller 
acted  from  beginning  to  end  under  the  mistaken  supposition  that 
the  note  was  made  payable,  as  it  should  have  been,  with  interest ; 
but  the  note  was  twice  transferred,  and  both  Almerin  Fuller  and 
the  defendant  took  it  under  the  same  mistake  of  supposing  it  carried 
interest.  Now  as  against  the  plaintiff,  James  H.  Fuller  had  an 
equitable  claim  to  have  the  mistake  corrected,  so  as  to  give  him  in- 
terest on  the  debt.  Then  Almerin,  having  taken  and  paid  James  for 
the  note  as  though  it  were  on  interest,  had  an  equitable  claim  to 
have  the  mistake  corrected,  so  as  to  give  the  interest  to  him.  The 
same  thing  is  true  as  between  the  defendant  and  Almerin.  The  de- 
fendant took  and  paid  him  for  the  note  as  though  it  carried  interest. 
And  thus  by  a  series  of  mistakes  the  equitable  claim  to  interest 
which  was  originally  in  James,  passed  from  him  to  Almerin,  and 
from  Almerin  to  the  defendant ;  so  that,  at  the  time  the  money  w^as 
paid,  the  defendant  was  the  person  who  was  equitably  entitled  to 
receive  it.  He  could  not  have  sued  the  plaintiff  for  it  at  law  in  his 
own  name ;  but  in  a  court  of  equity  the  money  would  have  been 
awarded  to  him,  and  not  to  James  H.  Fuller.  It  has  come  into  the 
defendant's  hands  without  suit,  and  from  the  person  who  ought  to 
pay  it ;  and  I  see  no  sufficient  reason  for  requiring  it  to  be  refunded. 
Whether  the  defendant  could  sue  at  law  in  his  own  name  to  recover 
the  money ;  or  whether,  having  fairly  got  it,  this  action  for  money 
had  and  received  to  the  plaintiff's  use  can  be  maintained,  are  very 
different  questions.  This  is  an  equitable  action,  which  may  be  de- 
fended upon  the  same  equitable  principles  as  those  upon  which  it  is 
maintained.  As  a  general  rule,  the  question  is,  to  which  party  ex 
aequo  et  bono  does  the  money  belong;  and  in  this  case,  I  think  it 
belongs  to  the  defendant,  who  has  got  it.  Let  us  suppose  that  the 
plaintiff  had  refused  to  pay  the  interest  to  the  defendant :  but,  being 
liable  to  pay  it  to  some  one,  he  had  paid  it,  either  voluntarily  or  bv 
compulsion,  to  James  FI.  Fuller,  between  whom  and  the  plaintiff 
the  original  mistake  w^as  made.  James  might  then  have  been  com- 
pelled to  pay  the  money  to  Almerin ;  and  Almerin  to  the  defendant. 
Or  if  we  begin  at  the  other  end,  the  defendant  might  have  fallen 
back  upon  Almerin,  and  compelled  him  to  correct  the  mistake  by 
paying  the  interest ;  Almerin  could  have  gone  back  in  like  manner 
upon  James ;  and  James  upon  the  plaintiff.  And  so  in  any  way  of 
viewing  the  matter,  the  plaintiff  was  bound  in  equitv  and  good  con- 
science to  pay  the  money;  and  the  defendant  was  the  man  who  in 


268  MISTAKE    OF    FACT. 

equity  and  good  conscience  was  entitled  to  receive  it.  He  has  got 
it;  and  to  allow  the  plaintiff  to  recover  it  back,  Vk'ould  be  to  make 
this  the  first  in  a  circuit  of  four  actions  which  would  end  in  leaving 
the  money  just  where  it  was  at  the  beginning. 

It  is  said  that  although  the  plaintiff  has  paid  the  interest  to  the 
defendant,  he  may  be  compelled  to  pay  it  again  in  an  action  on  his 
bond  to  Mrs.  Smith.  But  I  think  not.  It  fully  appears  that  the 
principal  sum  of  money  for  which  the  note  was  given  belonged  to 
James  H.  Fuller ;  and  of  course  he  was  entitled  to  the  interest  which 
should  afterward  accrue  on  that  sum.  If  the  indorsement  made  on 
the  plaintiff's  bond  would  not  of  itself  preclude  Mrs.  Smith  from 
recovering  the  interest  in  question,  it  would  clearly  be  enough  to 
show  in  addition,  that  the  plaintiff  had  corrected  the  error  by  pay- 
ing the  interest.  But  if  the  plaintiff  should  succeed  in  recalling  the 
money,  then  undoubtedly  yirs.  Smith,  on  proving  the  mistake  in 
giving  the  note,  and  that  the  plaintiff  had  not  corrected  it,  might 
recover  this  interest  for  the  benefit  of  James  H.  Fuller.  But  by 
leaving  the  money  where  it  is,  the  whole  series  of  mistakes  will  be 
corrected,  and  all  parties,  unless  it  be  the  plaintiff,  will  be  satisfied. 

Judgment  affirmed.^ 

^  In  Shaffer,  as  administrator,  v.  Bacon,  and  others,  35  App.  D.  (N.  Y.)  248 
(i8g8).  P.,  as  executor  of  the  will  of  Bartholick,  offered  the  will  for  probate, 
which  was  contested  by  the  heirs  at  law  upon  the  ground  that  Bartholick  did 
not  possess  testamentary  capacity.  F.  retained  defendants  as  attorneys  in  the 
litigation  and  paid  them  out  of  the  funds  of  the  estate.  The  surrogate  de- 
creed the  will  to  be  void  for  lack  of  testamentary  capacity,  and  upon  appeal  to 
the  Court  of  Appeals  the  decree  was  sustained.  Subsequently  plaintiff,  Shaf- 
fer, was  appointed  administrator  de  bonis  non  of  Bartholick,  and  brought 
this  action  for  money  had  and  received  to  recover  back  the  monej'^  paid  by 
F.  out  of  the  estate  to  defendants  for  legal  services,  which  were  found  to  be 
reasonably  worth  the  sums  paid  to  them.  The  court  said :  "This  action  is 
one  which  under  ancient  nomenclature  would  have  been  designated  ind'cbi- 
iatus  assumpsit,  or  an  action  for  money  had  and  received  to  the  use  of  the 
plaintiff;  and  although  such  an  action  is,  strictly  speaking,  legal  in  its  na- 
ture, it  is  one  wherein  the  plaintiff  may  not  recover  until  he  establishes  a 
right  founded  upon  equity  and  justice;  and  it  is  likewise  one  in  which  the 
same  principle  operates  in  favor  of  a  defendant  who  is  in  this  manner  called 
upon  for  the  payment  of  money.  (Eddy  v.  Smith,  13  Wend.  488;  Cope  v. 
Wheeler,  41  N.  Y.  303;  Rothschild  v.  Mack,  115  id.  i.)  *  *  *  *  j^  must 
be  borne  in  mind  that  this  is  not  a  proceeding  against  a  fraudulent  executor, 
but  an  action  against  innocent  third  parties,  who,  it  is  expressly  admitted, 
have  rendered  valuable  services  in  good  faith,  and  in  behalf  of  one  who,  at 
the  time  the  greater  portion  of  such  service  was  rendered,  had  been  adjudged 
the  legal  representative  of  a  large  and  valuable  estate.  In  view  of  these  facts, 
we  think  the  defendants  arc  entitled,  ex  aequo  ct  bono,  to  invoke  in  an  action 
of  this  nature  precisely  the  same  principle  that  would  be  available  to  them 
had  the  instrument  propounded  been  finally  established  as  the  last  will  and 
testament  of  George  A.  Bartholick." 

In  Franklin  Bank  v.  Raymond,  3  Wend.  69  (1829),  the  court  says  (p.  73)  : 
"The  debt  paid  by  the  defendants  was  one  that  subsisted  against  them  at  the 
time  of  payment.  The  fact  of  which  they  were  ignorant  did  not  show  that 
there  was  no  debt  existing  at  the  time;  it  only  .showed  that  they  were  in  a 
situation  which  enabled  them  to  set  off  against  the  demand  they  had  paid,  a 
demand  due  to  them.     *     *     *     *     I  do  not  find  any  case  where  money  paid 


NOT   AGAINST    CONSCIENCE    TO    RETAIN.  209 

PENSACOLA  &  ATLANTIC  R.  R.  v.  BRAXTON. 

34  Fla.  471.— 1894. 

Braxton  sued  the  railroad  company  for  cattle  killed  by  defend- 
ant's engines,  cars,  etc.,  and  recovered  jud.qment.   Defendant  appeals. 

Taylor,  J. — *  *  *  *  j|-,g  defendant  plead  as  a  set-off  to 
the  plaintiff's  claim,  and  proved  at  the  trial,  that  the  plaintiff  had 
received,  collected,  and  appropriated  to  his  own  use  a  voucher  for 
$22.50  that  the  defendant  company  sent  to  its  agent  at  Marianna, 
that  was  made  payable  to,  and  that  was  intended  for,  another  per- 
son than  the  plaintiff,  but  who  had  the  same  name  and  initials  as 
the  plaintiff,  viz.,  J.  W.  Braxton,  and  that  the  defendant's  agent 
had  by  mistake  delivered  said  voucher  to  the  plaintiff,  when  it  was 
not  really  intended  for  him.  The  plaintiff  at  the  trial  admitted  the 
receipt,  collection,  and  appropriation  by  him  of  this  voucher  for 
$22.50,  but  testified  that  on  January  12,  1889,  he  had  an  ox  killed 
by  the  defendant's  trains,  that  had  been  reported  to  the  defendant 
company  by  its  section  boss,  and  also  by  himself,  and  that  had  been 
valued  by  him  at  $25  ;  that  shortly  afterward  this  voucher  for  $22.50 
came,  payable- to  J.  W.  Braxton  (that  was  the  way  he  always  signed 
his  name)  ;  and  that,  as  the  company  had  been  in  the  habit  of  pay- 
ing him  a  little  less  than  his  claims,  and  as  he  knew  of  no  other 
J.  W.  Braxton  but  himself,  he  thought  this  voucher  was  intended 
for  him  in  settlement  for  said  reported  ox,  and  that  he  so  applied 
it ;  that  all  other  vouchers  paid  him  by  the  defendant  company  for 
stock  killed  were  made  out,  just  as  that  one  was,  payable  to  J.  W. 
Braxton ;  that  said  ox,  killed  before  said  voucher  came  to  him,  was 
not  included  in  this  suit,  and  that  he  had  never  received  any  pay  for 
it  other  than  the  proceeds  of  said  voucher,  and  he  considered  it  paid 
for  in  that  way ;  that  some  eighty  days  afterward  the  company  noti- 
fied him  that  said  voucher  was  not  intended  for  him,  but  for  an- 
other J.  W.  Braxton,  and  demanded  the  return  of  the  money,  but 
that  he  refused,  under  the  circumstances,  co  repay  it,  and  that  no 
suit  was  ever  brought  against  him  to  recover  it. 

On  this  state  of  facts  the  court  charged  the  jury  as  follows :  "If 
you  are  satisfied  from  the  evidence  that  there  was  due  from  the 
defendant  to  the  plaintiff,  at  the  time  said  money  was  paid,  the 
sum  of  $22.50  for  and  on  account  of  damages  done  by  the  defendant 
to  the  plaintiff"  for  other  stock  killed,  which  is  not  sued  for  in  this 
action,  and  w4iich  said  sum  of  $22.50  was  applied  to  the  payment  of 
his  (the  plaintiff's)  claim  for  the  killing  of  such  other  stock,  you  will 
not  allow  the  set-off."  This  charge  is  assigned  as  error,  and  raises 
the  question  as  to  when  money  can  be  recovered  back  that  has  been 

on  a  subsisting  demand  has  been  recovered  back  on  the  ground  that  the  person 
making  the  payment  has  subsequently  discovered  facts  that  show  he  had  a 
set-off  against  the  demand." 


270  MISTAKE    OF    FACT. 

paid  by  mistake.  The  law  seems  to  be  settled  that  money  paid  under 
a  mistake  of  facts  cannot  be  reclaimed,  where  the  plaintiff  has  de- 
rived a  substantial  benefit  from  the  payment,  nor  where  the  defend- 
ant received  it  in  good  faith  in  satisfaction  of  an  equitable  claim,  nor 
where  it  was  due  in  honor  and  conscience.  2  Greenl.  Ev.  (15th  Ed.), 
§  123 ;  Norton  v.  Harden,  15  Me.  45  ;  Moore  v.  Eddowes,  2  Adol.  & 
E.  133;  Glenn  v.  Shannon,  12  S.  C.  570;  Foster  v.  KirlDy,  31  Mo. 
496;  Brisbane  v.  Dacres,  5  Taunt,  143-163,  14  Eng-.  Rev.  Rep.  718; 
Farmer  v.  Arundel,  2  W.  Bl.  824.  The  right  to  recovery  in  such 
cases  turns  upon  the  question  as  to  whether  the  party  receiving  the 
money  paid  by  mistake  can,  in  good  conscience,  retain  it.  According 
to  the  plaintiff's  evidence,  he  had  a  just  and  legal  claim  against  the 
defendant  for  an  ox  wrongfully  killed  by  it,  amounting  to  $25, 
and  of  which  he  had  notified  the  defendant,  demanding  payment 
thereof.  He  received  the  voucher  for  $22.50  without  fraud  upon  his 
part,  but  in  good  faith,  believing  it  was  his,  and  that  it  was  given 
him  in  payment  of  his  claim,  and  he  so  appropriated  it.  His  claim 
seems  never  to  have  been  settled  otherwise.  Under  these  circum- 
stances, we  do  not  think  that  the  retention  of  the  money  by  him 
necessarily  involved  any  smartings  of  good  conscience,  and  there 
was  no  error  in  the  quoted  charge  of  the  court.^ 

^In  Mansfield  v.  Lynch,  59  Conn.  320  (1890),  the  administrator,  Bradley, 
who  had  by  mistake  as  to  the  solvency  of  the  estate  paid  in  full  the  claim  of 
the  defendant  who  was  a  creditor,  sought  to  recover  back  the  money.  The 
court,  in  replying  to  the  contention  of  defendant  that,  as  the  estate  did  in 
fact  owe  her  the  sum  paid,  she  had  'a  right  in  good  conscience'  to  retain  it, 
said  (p.  328)  :  "In  one  sense  it  is  true  that  the  estate  owed  the  defendant  the 
amount  overpaid,  but  it  is  not  in  any  legal  or  moral  sense  true  that  it  was 
the  duty  of  the  administrator  to  pay,  or  the  right  of  the  defendant  to  re- 
ceive, her  claim  in  full  from  the  then  known  assets  of  the  estate.  Her  right 
was  only  to  receive  her  pro  rata  share  with  the  other  general  creditors,  and 
the  unpaid  balance  still  remained  a  claim  in  her  favor  against  the  estate.  If 
she  gets  more  than  this  it  must  be  at  the  expense  of  the  other  general  credi- 
tors or  of  the  administrator.  She  did  in  fact  get  more  than  she  was  entitled 
to  solely  in  consequence  of  an  honest  mistake.  It  is  true  that  when  the  over- 
payment was  made  .she  had  no  knowledge  of  the  condition  of  the  estate  or  of 
the  mistakes  of  Bradley,  but  such  knowledge  on  her  part  is  not  made  one  of 
the:  conditions  of  recovery  in  the  case  cited,  and  after  she  obtained  such 
knowledge  she  still  refused  to  make  the  repayment.  Can  it  then  with  reason 
be  said  she  has  'a  right  in  good  conscience'  to  retain  money  which  right- 
fully belongs  to  the  estate,  to  which  she  is  neither  morally  nor  legally  en- 
titled, and  which  she  obtained  solely  in  consequence  of  an  honest  mistake 
which  wrought  her  no  harm  whatever?  Whatever  meaning  may  be  given  to 
the  somewhat  indefinite  phrase,  'right  in  good  conscience,'  we  think  it  clear 
that  the  defendant  had  no  such  right  as  against  Bradley  under  the  circum- 
stances to  retain  the  overpayment." 

See  also  City  of  Louisville  v.  Zanone,  i  Met.  (Ky.)  151   (1858). 


CHANGE    OF    DEFENDANT'S    POSmON.  i  i27I 

4.      CHANGE   OF    DEFENDANT'S    POSITION.  /j  /^ 

KINGSTON  BANK  v.  ELTINGE. 

40  N.  Y.  391. — 1869. 

For  a  statement  of  the  facts,  see  Kingston  Bank  v.  Eltinge  (66 
N.  Y.  625),  reported  herein  at  p.  264. 

Hunt,  Ch.  J. — *  *  *  *  The  next  proposition  of  the  respond- 
ents [defendants]  is,  that  by  the  discharge  of  their  judgments  they 
have  lost  their  Hen  upon  the  real  estate  of  their  judgment  debtors, 
and  if  compelled  to  refund  would  lose  their  debt.  To  state  it  in  an- 
other form,  they  insist  that  the  claim  against  them  cannot  be  main- 
tained, unless  they  can  be  restored  to  their  original  position,  and  se- 
cured from  the  intervention  of  other  liens  and  purchases.  This  they 
say  cannot  now  be  done,  citing  Crozier  v.  Acker,  7  Paige  137.  That 
was  the  case  of  a  mistake  of  law.  The  chancellor  says:  "If  this 
court  can  relieve  against  a  mistake  in  law  in  any  case,  where  the 
defendant  has  been  guilty  of  no  fraud,  which  is  very  doubtful,  it 
must  be  in  a  case  in  which  the  defendant  has  lost  nothing  by  the 
mistake,  and  where  the  parties  can  be  restored  to  the  same  situation 
in  which  they  were  at  the  time  the  mistake  happened." 

The  application  of  this  principle  to  the  present  case  would  sub- 
stantially destroy  the  rule  that  money  paid  in  mistake  of  facts  can 
be  recovered  by  the  payer  from  the  receiver.  If  the  facts  could  be 
so  arranged,  that  there  would  be  no  loss  to  either  party,  there  would 
be  nothing  to  contend  about,  and  no  such  actions  would  be  brought. 
It  is  only  where  the  retention  or  restoration  of  the  money  involves 
a  loss  that  the  parties  are  anxious  about  it.  It  is  an  ordinary  result 
of  the  transaction,  that  the  party  receiving  has  incurred  liabilities 
or  paid  money  which  he  would  not  have  done,  except  for  the  re- 
ceipt of  the  money.  I  find  no  case,  however,  in  which  this  has  been 
held  to  relieve  him  from  the  performance  of  his  duty.  In  the  pres- 
ent case,  the  one  party  or  the  other,  upon  the  facts  found,  will  lose 
his  debt.  By  cancelling  their  judgment,  the  respondents  will  have 
lost  an  available  security.  By  failing  to  receive  the  amounts  due  to 
them  upon  their  subsisting  executions,  the  appellants  will  have  lost 
their  debt.  One  party  or  the  other  being  compelled  to  lose,  the  ques- 
tion is,  which  shall  it  be.  The  answer  given  by  the  authorities  is, 
that  the  party  having  the  legal  right  must  prevail.  In  the  Canal 
Bank  v.  Bank  of  Albany,  i  Hill  287,  which  was  an  action  by  one 
bank  to  recover  from  the  other  the  amount  of  a  draft  paid  to  it  upon 
a  forged  indorsement  of  the  name  of  the  payee,  the  plaintiff  recov- 
ered as  for  money  paid  by  mistake,  and  it  was  held  no  defense  to 
show  that  the  defendant  had  collected  the  money  as  the  agent  of 
another  bank  in  the  city  of  New  York,  and  had  in  good  faith  and 
without  notice  paid  over  the  money  to  its  principal.  Here  a  loss 
was  inevitable  to  the  defendant  or  its  principal,  and  it  was  impossi- 


2^2  MISTAKE    OF    FACT. 

ble  to  restore  them  to  the  position  of  the  holder  of  an  unmatured  and 
unprotected  draft.  They  were  held  liable  nevertheless.  In  Bank  of 
Commerce  v.  Union  Bank,  3  Comst.  230,  the  same  principle  is  laid 
down  and  in  the  same  manner.  The  Union  Bank  had  paid  to  its 
New  Orleans  correspondent  the  money  received  from  the  plaintiff. 

In  Rheel  v.  Hicks,  25  N.  Y.  289,  a  complaint  had  been  made 
against  the  plaintiff  that  he  was  the  father  of  a  bastard  child,  of 
which  one  Louisa  Hehr  was  pregnant,  and  upon  the  oath  of  the  said 
Louisa.  The  plaintiff  was  arrested,  and  compromised  the  matter 
with  the  superintendent  of  the  poor  by  paying  him  fifty  dollars  in 
consideration  of  a  full  settlement  and  release  for  the  child's  sup- 
port. It  turned  out  that  the  complainant  was  not  pregnant  with  a 
child  by  any  one,  and  that  she  was  not  delivered  of  a  child  at  all. 
The  plaintiff  brought  his  action  against  the  defendant  to  recover 
back  the  money  paid,  and  recovered.  This  court  also  held  that  the 
fact  that  he  had  paid  over  the  money  to  the  county  did  not  alter  the 
case,  although  it  was  his  duty  so  to  pay  over  all  moneys  received  for 
the  support  of  bastards. 

Neither  of  the  propositions  on  which  the  judgment  of  the  su- 
preme court  is  supposed  to  be  based  can  be  maintained.  There  is 
nothing  to  except  this  case  from  the  general  principles  applicable 
to  its  class,  and,  upon  the  facts  found,  the  judgment  should  have 
been  for  the  plaintiff. 

The  supreme  court  could  readily  vacate  the  satisfaction  of  the 
judgments  and  restore  the  defendants  to  their  former  position,  so 
far  as  the  judgment  debtors  are  concerned.  Should  there  have  been 
bona  ade  purchases  in  the  meantime,  the  case  would  be  more  com- 
plicated, and  we  are  not  called  upon  to  say  what  would  be  the  result. 
In  any  event,  I  think  this  consideration  cannot  prevent  the  plain- 
tiff's from  recovering  the  moneys  justly  due  to  them.  Adams  v. 
Smith,  5  Cow,  280 ;  Barker  v.  Bissinger,  14  N.  Y.  270. 

The  judgment  should  be  reversed  and  a  new  trial  granted,^ 

Daniels,  J.,  dissenting.     *     *     *     * 


NEW  ALL  AND  ANOTHER  V.  TOMLINSON  and  another. 
L.  R.  6  C.  P.  405.— 1871. 

Action  for  money  had  and  received,  money  paid,  interest,  and 
money  found  due  upon  accounts  stated.    Plea,  never  indebted. 

The  facts  were  as  follows :  The  plaintiffs  and  the  defendants 
were  respectively  cotton  brokers  in  Liverpool.  In  April,  1870,  the 
plaintiffs  bought  of  the  defendants  seventy-four  bales  of  cotton  ex 
Clcn  Cora,  each  acting  for  principals  whose  names  were  not  dis- 
closed, and,  according  to  the  usage  of  the  cotton-market,  each  treat- 

*  Accord,  Corn  Exchange.  Bank  v.  Nassau  Bank,  91   N.  Y.  74   (1883). 


CHANGE    OF    DEFENDANT  S    POSITION.  273 

ing  the  others  as  principals  in  the  transaction.  Weight-Hsts  of  the 
cotton  were  in  the  ordinary  course  deHvered  to  each  party  from  the 
warehouse-keeper  at  Albert  Dock ;  but  a  clerk  of  the  defendants 
made  a  mistake  of  lOO  cwt,  in  adding-  up  the  figures,  and  the  conse- 
quence was  that  when  the  plaintiffs  paid  for  the  cotton  they  paid 
the  defendants  too  much  by  509/  15s.  The  mistake  was  not  discov- 
ered until  the  14th  of  December,  wdien  the  plaintiffs  demanded  back 
that  sum.  The  invoice  for  the  cotton  (which  was  delivered  on  the 
226.  of  April)  was  headed  as  follows:  "Messrs.  Newall  &  Clayton, 
bought  from  W.  D.  Tomlinson  &  Co."  etc. ;  and  it  was  not  until 
after  the  discovery  of  the  mistake  that  the  plaintiffs  were  informed 
(as  the  fact  was)  that  Messrs.  Dixon  &  Co.  were  the  defendants' 
principals. 

In  the  meantime  the  defendants,  who  had  previously  to  the  arrival 
of  the  cotton  advanced  very  considerable  sums  to  the  shippers, 
Messrs.  Dixon  &  Co.,  had  allowed  the  sum  in  question  in  their 
account  with  them,  and  had  subsequently  gone  on  making  further 
advances ;  and  when  Dixon  &  Co.  ultimately  suspended  payment, 
the  balance  due  from  them  to  the  defendants  on  account  of  these 
transactions  exceeded  2000/.  The  defendants  thereupon  claimed 
to  be  entitled  to  shelter  themselves  under  the  rule  of  law  which 
protects  payments  bona  fide  made  by  an  agent  to  his  principal,  with- 
out notice ;  and  at  the  trial  it  was  submitted  on  their  behalf,  that, 
being  known  to  the  brokers,  and  being  under  advances  to  their 
principals,  whether  the  plaintiffs  knew  that  they  were  acting  for 
principals  or  not,  they  (the  defendants)  were  entitled  and  bound 
to  hand  over  the  money  to  their  principals,  or  (which  was  the  same 
thing)  entitled  to  set  it  off  against  their  advances,  and  having  done 
so,  were  not  liable  to  be  called  upon  to  refund  it :  and  the  cases  of 
Holland  v.  Russell,  i  B.  &  S.  424,  30  L.  J.  Q.  B.  308:  in  error,  4  B. 
&  S.  14,  ^2  L.  J.  Q.  B.  297,  and  Shand  v.  Grant,  15  C.  B.  N.  S.  324, 
were  cited. 

The  learned  judge  in  his  summing-up  said  that  every  agent  for 
the  sale  of  goods  who  has  advanced  money  upon  them  and  has  them 
in  his  possession,  has  a  right  to  sell  them  as  owner,  unless  there  be 
a  countermand  of  his  authority ;  and  he  distinguished  the  cases  cited, 
on  the  ground  that  in  both  of  them  the  persons  who  dealt  with 
the  agent  knew  that  they  were  dealing  with  one  who  represented 
an  undisclosed  principal ;  whereas  here  the  defendants,  though  gen- 
eral brokers,  acted  in  the  particular  case  as  principals,  and  he  di- 
rected the  jury  to  find  for  the  plaintiffs,  damages  509/  15s.,  reserv- 
ing leave  to  the  defendants  to  move  to  enter  a  verdict  for  them,  or  a 
non-suit,  if  the  court  should  think  the  ruling  wrong. 

Quain,  Q.  C,  moved  accordingly, 

BoviLL,  C.  T- — The  defendants  in  the  first  instance  personally 
claimed  the  price  of  the  cotton  from  the  plaintiffs  as  upon  a  sale  to 
them  by  the  defendants,  each  being,  as  between  themselves,  person- 
ally bound  as  principals  in  the  transaction,  though  each  were  act- 
Woodrupf's  Cases — 18 


274  MISTAKE    OF    FACT. 

ing  for  principals  whose  names  were  not  disclosed.  The  invoice  was 
made  out  as  upon  a  sale  from  the  defendants  to  the  plaintiffs,  and 
claiming-  the  price  as  being  due  to  the  defendants  personally  ;  and 
each  were  liable  personally  to  the  others  for  the  due  performance 
of  the  contract.  The  defendants  were  entitled  to  sue  for  and  recover 
the  price  of  the  cotton  in  their  own  names,  and  to  apply  it  when  re- 
ceived to  their  own  use  and  benefit.  They  had  made  large  advances 
to  their  principals,  Messrs.  Dixon  &  Co.,  upon  the  security  of  the 
cotton,  and  were  entitled  to  sell  it  to  recoup  themselves.  In  no  sense 
could  they  be  said  to  have  received  this  money  for  the  purpose  of 
handing  it  over  to  Messrs.  Dixon  &  Co. ;  nor  did  they  in  point  of 
fact  hand  it  over  to  them.  It  is  true  that  the  defendants  were  shown 
to  have  made  further  advances  to  Messrs.  Dixon  &  Co.  subse- 
quently to  the  receipt  by  them  of  this  money.  That,  however,  could 
not  make  it  money  had  and  received  by  Messrs.  Dixon  &  Co.  to 
the  use  of  the  plaintiffs,  so  as  to  enable  them  to  sue  Messrs.  Dixon 
&  Co.  for  it.  The  mistake  originated  with  the  defendants  them- 
selves, and  they  alone  are  responsible.  The  cases  relied  on  are 
clearly  distinguishable.  In  Shand  v.  Grant,  15  C.  B.  N.  S.  324, 
the  defendant  received  the  money  as  agent  of  the  shipowner,  and 
for  the  purpose  of  handing  it  over  to  him.  The  case  was  put  en- 
tirely upon  the  ground  that  the  defendant  was  a  mere  agent.  He 
had  handed  over  the  money  to  his  principal,  and  the  principal  was 
the  proper  person  to  sue.  So,  in  Holland  v.  Russell,  the  same  view 
was  taken,  and  the  decision  proceeded  upon  the  ground  that  the 
defendant  was  a  mere  agent.  Cockburn,  C.  J.,  in  delivering  the 
judgment  of  the  court  below,  after  stating  what  had  been  the  con- 
tention on  one  side  and  on  the  other,  says,  i  B.  &  S.  424,  at  p.  432, 
30  L.  J.  Q.  B.  308,  at  p.  312:  "We  are  of  opinion  that  the  plaintiff 
fails  upon  the  facts.  Not  only  is  it  clear  that  the  defendant  was 
acting  solely  as  agent,  but  (the  court  having  power  to  draw  infer- 
ences of  fact)  we  are  of  opinion  that  the  plaintiff  was  aware  that 
the  defendant  was  acting  as  agent  for  the  foreign  owners,  and  as 
such  made  to  him  the  payment  of  the  money  he  now  seeks  to  re- 
cover back."  And,  when  the  case  came  before  the  court  of  error, 
the  same  view  was  taken.  Erle,  C.  J.,  delivering  the  judgment  of 
that  court,  says,  4  B.  &  S.  14,  at  p.  15,  32  L.  J.  Q.  B.  297,  at  p.  298: 
"The  defendant  who  received  this  money  from  the  plaintiff  re- 
ceived it  as  agent  for  a  foreign  principal.  The  plaintiff  knew  that, 
and  paid  him  in  that  capacity,  with  the  intention  that  he  should  pay 
it  over  to  that  principal,  and  he  did  so ;  and  all  the  money  thus  re- 
ceived has  been  accounted  for  in  a  settlement  of  account  approved 
by  the  foreign  principal,  under  circumstances  which  clearly  amount 
to  payment  of  that  sum  to  him.  The  defendant  having  therefore 
Ijeen  altogether  an  agent  in  the  matter,  is  there  anything  which 
takes  him  out  of  the  ordinary  protection  to  which  an  agent  is  en- 
titled who  pays  money  to  his  principal  before  he  received  notice 
not  to  pay  it,  and  before  he  knew  that  there  was  no  legal  duty  on 
him  to  do  so?    There  is  nothing  in  this  case  to  deprive  the  defend- 


CHANGE   OF    DEFENDANT  S    POSITION.  275 

ant  of  the  right  of  an  ordinary  agent  so  to  protect  himself."  Here 
the  defendants  were  not  mere  agents.  They  were  deahng  as  prin- 
cipals, and  entitled  to  apply  the  proceeds  of  the  sale  of  the  cotton 
to  their  own  use.  For  these  reasons  I  am  of  opinion  that  the  di- 
rection of  the  learned  judge  was  right,  and  that  there  should  be  no 
rule.   [Concurring  opinions  by  Byles,  Montague  Smith  and  Brett, 

JJ.] 


BANK  OF  TORONTO  v.  HAMILTON.^ 
28  Ont.  Rep.  51.— 1896. 

In  this  action  the  Bank  of  Toronto  sought  to  recover  certain 
moneys  from  the  defendant  under  circumstances  alleged  in  their 
statement  of  claim  as  follows:  That  on  July  19,  1895,  the  plaintiffs 
received  at  their  office  in  Montreal  from  W.  G.  Elliott  $2,000  who 
requested  them  to  telegraph  it  to  Toronto  to  the  defendant's  credit, 
with  instructions  to  advise  the  plaintiff's  branch  office  at  719  King 
street  west,  which  was  done,  but  by  error  in  transmitting  the  mes- 
sage the  amount  was  re:  ved  as  $3,000  instead  of  $2,000;  that  sub- 
sequently the  defendant  .:alled  at  the  said  branch  office  and  inquired 
as  to  any  money  having  been  received  to  his  credit,  and  was  then  by 
mistake  informed  that  there  was  to  his  credit  the  sum  of  $3,000, 
and  he  thereupon  drew  a  check  for  the  $3,000  and  received  the 
amount ;  that  shortly  afterward  the  plaintiffs  discovered  the  mis- 
take and  thereupon  notified  the  defendant  thereof  and  demanded 
the  return  of  the  $1,000,  and  the  defendant  repaid  part  of  the  $1,000, 
but  refused  to  pay  the  balance,  which  the  plaintiffs  now  claimed.  The 
facts  as  proved  at  the  trial  are  sufficiently  mentioned  in  the  judg- 
ment, and  on  them  the  defendant  relied  in  his  defense,  and  pleaded 
that  though  he  had  repaid  part  of  the  $1,000  to  which  he  had  no 
claim  as  against  Halliday,  in  the  judgment  mentioned,  he  declined  to 
return  the  remainder,  because  he  was  in  no  way  a  party  to  the  alleged 
mistake,  and  had  in  consequence  of  the  payment  made  to  him  surren- 
dered all  claim  to  the  cattle,  as  the  purchase  money  for  which  the 
sum  was  owed  to  him  by  Halliday. 

The  action  was  tried  at  the  Toronto  non-jury  sittings  before  Boyd, 
C,  on  October  5th  and  7th,  1896. 

October  8th,  1896.  Boyd,  C.^The  advice  sent  by  the  bank  from 
Montreal  to  Toronto  was,  "Credit  I.  Hamilton  $2,000,  per  ElHott ; 
advise  King  street."  The  King  street  agency  of  the  bank  was  ad- 
vised, but  by  a  blunder  in  the  transmission  by  telephone  $3,000  was 
credited  in  the  King  street  agency,  and  this  was  checked  out  to 
Hamilton  about  one  o'clock  on  Friday,  July  19,  1895.  The  bank  thus 
by  mistake  and  in  the  hurry  of  business  made  an  overpayment  of 
$1,000  to  the  defendant. 

"  Not  appealed. — Ed. 


2'j()  MISTAKE   OF    FACT. 

At  Montreal  this  was  the  transaction :  Halliday  came  to  Elliott 
with  a  shipping  bill  of  cattle  (which  he  had  bought  from  Hamilton) 
and  asked  an  advance  upon  that  security,  and  Elliott  agreed  to  ad- 
vance $2,000,  and  this  being  accepted,  he  issued  a  check  for  $2,000, 
payable  to  the  Bank  of  Toronto  on  account  of  Hamilton.  This  be- 
ing paid  in  about  ii  a.  m.  on  Friday,  was  wired  to  the  Toronto 
office,  as  already  stated.  The  cattle  came  to  Montreal  early  on  Satur- 
day and  were  shipped  at  7  a.  m.  on  that  day.  The  bank,  after  using 
all  diligence,  were  only  able  to  notify  Hamilton  of  the  error  and 
overpayment  about  midnight  on  the  same  Saturday  and  after  the 
cattle  had  been  shipped.  The  private  bargain  between  Hamilton  and 
Halliday  was  that  the  cattle  should  not  be  shipped  unless  $2,827 
were  paid  to  Hamilton.^  If  this  money  was  not  obtained  and  paid 
to  Hamilton  he  was  to  have  or  resume  possession  of  the  cattle.  This 
by-bargain,  however,  was  not  made  known  to  Elliott  or  the  bank, 
but  the  defendant  relies  upon  this  as  a  reason  for  withholding  the 
money  overpaid  sufficiently  to  satisfy  his  full  claim  against  Halliday. 

These  are  the  salient  facts.  Hamilton  had  the  right  to  be  paid 
$2,827  by  Halliday.  Halliday  not  disclosing  this  arranges  for  the 
payment  of  $2,000  only  to  Hamilton — getting  that  advance  from 
Elliott  in  exchange  for  the  delivery  and  :^ossession  of  the  cattle : 
Elliott  pays  that  amount  ($2,000)  into  the  3ank  for  Hamilton,  and 
the  bank,  by  the  error  of  its  officers,  pays  out  $3,000  instead  of  $2,000 
to  the  defendant  Hamilton.  Halliday  being  entrusted  by  Hamilton 
with  the  shipping  bill  of  the  cattle,  was  able  to  transfer  them  to  El- 
liott in  consideration  of  the  $2,000  advance,  and  the  money  instead 
of  being  paid  to  him  and  transmitted  to  Hamilton,  was  paid  into 
the  bank  by  Elliott  to  Hamilton's  credit.  Hamilton  was  Halliday's 
nominee  for  payment  and  as  against  the  bank  and  Elliott  has  no 
higher  rights  than  Halliday.  This  is  one  way  of  viewing  the  facts, 
going  to  show  that  Hamilton's  right  to  retain  the  surplus  is  to  be 
measured  by  Halliday's  right  to  retain  had  he  received  the  money, 
which  could  not  be  argued. 

In  another  respect  this  case  seems  to  fall  within  the  principle  laid 
down  by  Parke,  B.,  in-  Kelly  v.  Solari,  9  M.  &  W.  54,  "that  where 
money  is  paid  to  another  under  the  influence  of  a  mistake  (that 
is,  upon  the  supposition  that  a  specific  fact  is  true)  which  would 
entitle  the  other  to  the  money,  but  which  fact  is  untrue,  and  the 
money  would  not  have  been  paid  if  it  had  been  known  to  the  payer 
that  the  fact  was  untrue,  an  action  will  lie  to  recover  it  back,  and  it 

^  The  statement  of  defense  stated  that  after  the  agreement  of  sale,  the  cat- 
tle were  placed  on  the  cars  at  Wroxeler  for  sliipment  to  Montreal,  when  Halli- 
day alleging  himself  iinahle  to  pay  the  $2,827,  it  was  thereupon  agreed  that 
the  cattle  shonld  go  forward  to  Montreal,  that  the  defendant  should  follow 
them,  and  that  if  ITalliday  did  not  transmit  the  money  hy  telegraph  to  To- 
ronto to  the  defendant,  the  defendant  having  followed  the  cattle  to  Montreal 
should  there  reclaim  and  resume  possession  of  them,  and  that  until  the 
money  was  fully  paid  the  cattle  should  remain  the  property  of  the  defend- 
ant.— Rep. 


CHANGE   OF   DEFENDANT'S    POSITION.  277 

is  against  conscience  to  retain  it."  The  specific  fact  which  induced 
the  action  of  the  bank  here  was  that  $3,000  had  been  placed  to  the 
credit  of  the  defendant  by  the  action  of  their  Montreal  branch,  only 
$2,000  in  fact  being  so  placed.  Though  the  defendant  may  have  had 
the  right  to  more  than  $2,000  as  against  Halliday,  that  appears  to 
give  no  equity  to  retain  the  proper  money  of  the  bank — which  to  the 
extent  of  $i,ooo  was  paid  over  to  the  defendant  without  considera- 
tion. It  may  be  fairly  said  that  there  was  a  common  mistake  in 
this  case,  for  the  plaintiffs  believed  that  the  direction  of  their  agent 
was  to  pay  $3,000  to  the  defendant  on  account  of  Halliday,  and  the 
defendant  believed  that  Halliday  had  carried  out  the  private  ar- 
rangement between  them,  by  which  at  least  $2,827  was  to  be  ob- 
tained in  respect  of  the  cattle  before  they  were  to  be  shipped.  But 
the  real  fact  was  that  only  $2,000  was  asked  for  and  obtained  by  Hal- 
liday. 

The  cases  cited  for  the  defendant  appear  plainly  distinguishable. 
Moss  V.  Mersey  Docks  Board,  20  W.  R.  701,  depends,  as  Cockburn, 
C.  J.  said,  not  on  a  mistake  of  law  or  fact,  but  on  the  statutory 
powers  of  the  board,  and  he  says  further,  if  there  was  a  mistake  it 
was  not  made  by  the  person  who  paid  the  money  but  by  another, 
on  whose  mistake  the  plaintiff  acted.  Chambers  v.  Miller,  13  C.  B. 
N.  S.  125,  was  simply  a  decision  as  to  the  property  in  money  having 
vested  upon  payment  of  a  check,  and  that  though  there  was  a  mis- 
take in  paying,  the  money  could  not  be  retaken  by  violence.  The 
mistake  there  was  one  between  the  bank  and  its  customer,  to  which 
the  holder  of  the  check  was  no  party.  The  other  cases  were  on  col- 
lateral points. 

I  therefore  adhere  to  the  provisional  judgment  given  at  close  of 
the  case  and  make  it  absolute  so  far  as  I  am  concerned. 

/^ 

BEHRING  ET  AL.  V.  SOMERVILLE. 

63  N.  J.  L.  568.— 1899. 

Action  by  Albert  F.  Behring  and  others  against  Alonzo  Somer- 
ville.  Judgment  for  plaintiffs.   Defendant  brings  error.    Reversed. 

Van  Syckel,  J. — This  case  was  tried  below  before  Mr.  Justice 
Depue,  by  consent  of  parties,  without  a  jury.  The  said  justice  found 
the  following  facts:  On  the  5th  of  February,  1885,  Mrs.  Behring 
executed  a  mortgage  for  $500  to  William  King.  William  King's 
executors,  on  the  23d  of  October,  1886,  assigned  said  mortgage  to 
Isaac  W.  King,  which  assignment  was  recorded  November  22,  1886. 
Isaac  W.  King  assigned  this  mortgage,  and  also  a  mortgage  against 
one  Hartman  for  $700.  to  one  Mott,  April  29,  1890,  to  secure  a  note 
for  $1,000.  This  assignment  was  recorded  in  February,  1892.  Judg- 
ment was  obtained  by  Mott  against  Isaac  W.  King  on  this  note  in 


278  MISTAKE   OF    FACT. 

May,  1895,  for  $1,200.66.  King  is  insolvent,  and  resides  out  of  this 
state.  King  retained  possession  of  the  Behring  bond  and  mortgage 
after  he  assigned  it  to  Mott,  and  on  the  25th  of  March,  1893,  as- 
signed it  to  the  said  Somerville  to  secure  the  sum  of  $325,  which 
assignment  was  recorded  November  3,  1893.  Somerville  had  the 
records  searched  before  he  took  said  assignment,  and  the  prior  as- 
signment to  Mott  was  overlooked.  On  the  nth  of  October,  1893, 
]\Irs.  Behring,  at  King's  request,  went  with  him  to  Somerville's 
office,  and  there  paid  the  principal  sum  due  on  the  mortgage ;  the 
interest  being  abated  by  an  arrangement  between  King  and  Mrs. 
Behring.  Mrs.  Behring  gave  Somerville  $325,  and  paid  the  balance 
to  King.  The  mortgage  was  produced  by  Somerville,  and  a  receipt 
directing  the  county  clerk  to  cancel  it  was  signed  by  King  and 
Somerville,  and  then  King  went  with  Mrs.  Behring  to  the  clerk's 
office,  and  took  the  receipt  and  mortgage,  and  had  the  mortgage 
canceled  of  record.  The  receipt  was  as  follows:  "County  Clerk  of 
Essex  county :  The  within  mortgage  being  fully  paid  and  satisfied, 
please  cancel  the  same  of  record.  Isaac  W.  King.  A.  Somerville." 
Neither  Mrs.  Behring  nor  Somerville  had  actual  notice  of  the  as- 
signment to  Mott.  This  suit  was  brought  by  Mrs.  Behring  to  re- 
cover from  Somerville  the  money  which  she  paid  him  on  account 
of  the  mortgage.  By  agreement  of  the  respective  parties,  it  was  sub- 
mitted to  the  supreme  court,  upon  the  facts  found  as  aforesaid, 
whether  Mrs.  Behring  was  entitled  to  recover  of  Somerville  the  said 
sum  of  $325,  and  that  the  said  special  case  might  be  turned  into 
a  special  verdict.  Thereupon  the  supreme  court,  being  of  opinion 
that  Mrs.  Behring  was  entitled  to  recover,  at  the  request  of  the  at- 
torney of  Somerville,  ordered  that  said  special  case  be  treated  as  if  a 
special  verdict  had  been  rendered  by  a  jury  of  the  above-stated  facts 
as  found  by  said  justice  of  the  supreme  court,  and,  upon  motion  of 
the  attorney  of  Mrs.  Behring,  entered  judgment  upon  said  verdict 
in  favor  of  Mrs.  Behring  and  against  Somerville  for  the  sum  of 
$430.50.  The  writ  of  error  in  this  case  is  prosecuted  to  review  the 
judgment  of  the  supreme  court. 

It  appears  by  the  facts  found  that  neither  Mrs.  Behring  nor 
Somerville  had  actual  notice  of  the  assignment  to  Mott,  and  there  is 
no  evidence  whatever  to  charge  Somerville  with  fraud  or  want  of 
good  faith  in  this  transaction.  The  statute  authorizing  the  record- 
ing of  assignments  of  mortgages  provides  that  such  record  shall  be 
notice  of  such  assignment  to  all  persons  concerned  from  the  time 
the  assignment  is  left  for  record.  Both  Mrs.  Behring  and  Somer- 
ville are  therefore  chargeable  with  constructive  notice  of  the  previous 
assignment  to  Mott,  but,  neither  having  actual  notice,  the  mistake 
of  fact  upon  which  they  acted  was  mutual,  each  believing  that 
Somerville  had  a  valid  assignment  of  the  mortgage,  subject  to  no 
paramount  equities,  and  each  having  equal  and  adequate  means  of 
ascertaining  the  real  situation  by  reference  to  the  record.  In  Deare 
V.  Carr,  3  N.  J.  Eq.  513,  the  chancellor  said:  "There  are  a  great 
variety  of  cases  in  which  relief  will  be  afforded ;  so  many,  indeed,  as 


CHANGE    OF    DEFENDANT  S    POSITION.  279 

to  have  given  rise  to  the  general  rule  that  an  act  done,  or  a  con- 
tract made,  under  a  mistake  or  ignorance  of  a  material  fact,  is 
voidable  and  relicvable  in  equity.  The  rule  has  a  number  of  im- 
portant qualifications  or  exceptions,  and  these  are  often  as  im- 
portant as  the  rule  itself."  After  discussing  the  authorities,  Chan- 
cellor Vroom  classified  the  case  in  hand  with  the  exceptions  to  the 
general  rule,  for  the  reason  that  the  party  seeking  relief  on  the 
ground  of  a  mistake  of  fact  could  have  ascertained  the  true  situation 
by  reference  to  the  record  of  mortgages.  As  applicable  to  that  case, 
where  a  purchase  was  made  at  sheriff's  sale,  the  parties  acting  in 
like  ignorance  of  the  record,  he  lays  down  the  rule  that  where  the 
fact  is  equally  unknown  to  both  parties,  or  where  each  has  equal 
and  adequate  means  of  information,  and  both  have  acted  in  good 
faith,  the  court  will  not  interfere. 

The  right  of  a  debtor  to  recovei*  from  his  creditor  money  paid  by 
mutual  mistake,  in  excess  of  what  is  due  and  owing,  is  not  ques- 
tioned, because  there  the  position  of  the  creditor  is  in  no  wise  in- 
juriously affected  by  requiring  him  to  restore  the  overpayment. 
But  in  the  case  sub  jndice,  both  parties  having  acted  in  ignorance  of 
a  material  fact,  neither  can  claim  a  right  to  relief  superior  to  the 
other.  They  must  be  left  in  the  position  in  which  they  placed 
themselves.  Somerville  had  in  fact  good  title  to  the  mortgage, 
subject  to  the  right  of  Mott,  the  prior  assignee.  He  had  a  right  to 
receive  payment  of  his  note,  and  surrender  his  claim  upon  the  mort- 
gage he  held  as  collateral.  He  did  that  in  the  presence  of  Mrs. 
Behring,  the  mortgagor,  who  paid  him  the  amount  due  him,  and 
also  in  the  presence  of  King,  who  had  assigned  and  delivered  the 
bond  and  mortgage  to  him.  Somerville  was  under  no  legal  obliga- 
tion to  ascertain  whether  any  equities  prior  to  his  own  existed,  and 
give  such  information  to  Mrs.  Behring.  Somerville  in  this  trans- 
action surrendered  his  assignment,  and  lost  his  legal  hold  upon  the 
bond  and  mortgage,  as  security  for  his  claim  against  King,  and  l^.lrs. 
Behring  cannot  call  upon  him  to  return  the  money  paid  by  her 
without  restoring  him  to  his  position.  That  was  recognized  as  the 
correct  legal  rule  in  Shand  v.  Grant,  109  E.  C.  L.  323.  where  the 
court  refused  to  allow  a  recovery  of  money  paid  under  a  mistake  of 
fact  as  against  persons  who  had  changed  their  position  in  good 
faith,  believing  the  payment  to  have  been  rightly  made.^  The 
judgment  of  the  supreme  court  should  therefore  be  reversed.  *  *  *  * 

*  But  see  the  comment  on  this  case  in  Newall  v.  Tomlinson,  ante,  p.  272,  274. 


280  MISTAKE   OF    FACT.  i 

\ 

WALKER  V.  CONANT. 

69  Mich.  321.— 1888. 

Assumpsit.     Plaintiff  brings  error.    Affirmed. 

MoRSE^  J. — *  *  *  *  Stripped  of  all  sophistry,  the  naked  case 
is  this :  Van  Riper  obtains  $3,000  of  the  plaintiff  upon  a  forged 
mortgage/  and,  out  of  the  money  so  obtained,  pays  Mrs.  Conant 
the  debt  he  owes  her,  which  is  evidenced  by  a  forged  note,  and 
secured  by  a  forged  mortgage  upon  the  same  premises  described  in 
mortgage  to  plaintiff.  The  money  is  honestly  her  due,  and  she  has 
an  equitable  right  to  demand  and  receive  it  of  Edgar  [Van  Riper]  ; 
and,  believing  her  securities  to  be  genuine  and  valid,  she  takes  the 
money  and  surrenders  them  up  to  him  to  be  cancelled  and  de- 
stroyed, and  in  utter  ignorance  of  the  fraud  perpetrated  upon  the 
plaintiff  by  Van  Riper.  It  is  the  same,  in  fact  and  in  legal  effect, 
in  my  opinion,  as  if  the  $3,000  had  been  paid  direct  to  Van  Riper 
by  Walker,  and  he  had  taken  the  money  away,  and  out  of  it  after- 
w^ards  paid  the  debt  to  Mrs.  Conant,  and  received  the  note  and  mort- 
gage direct  from  her  hands. 

In  such  case,  it  seems  to  me,  under  all  the  authorities,  that  the 
fact  that  the  plaintiff  or  his  agent  supposed  his  bond  and  mortgage 
to  be  genuine,  and  the  Conant  mortgage  to  be  a  valid  lien  upon  the 
premises,  cuts  no  figure  in  the  case.  It  is  not  a  case  where  he  has 
purchased  the  Conant  mortgage  as  an  investment,  believing  it  to  be 
valid.  It  is  not  a  case  where  he  has  parted  with  his  money,  and 
received  a  void  security  which  he  would  not  have  bought  had  he 
known  it  to  be  false  and  forged.  But,  in  the  present  case,  he  was 
loaning  the  $3,000  upon  an  $8,000  farm,  and,  as  he  supposed,  upon 
good  security.  This  was  the  main  and  absorbing  transaction.  The 
payment  and  discharge  of  the  Conant  mortgage  was  but  an  incident 
of  his  dealing.  If  the  mortgage  had  not  been  in  existence.  Van 
Riper  would  have  obtained  the  same  sum,  $3,000,  upon  the  bond 
and  mortgage  delivered  to  E.  C.  Walker.  Being  in  existence,  and 
preventing,  until  discharged,  a  first  mortgage  upon  the  premises, 
Walker  stipulated  that  this  mortgage  should  be  released  out  of  the 
funds  paid  by  him  to  Van  Riper  upon  the  loan.  Walker  would 
have  been  equally  satisfied,  no  doubt,  if  Van  Riper  had  paid  the 
Conant  mortgage  before  receiving  any  money  upon  the  mortgage 
executed  to  Helen  M.  Dudley,^  and  assigned  to  plaintiff,  or  if  he 
had  taken  the  money  after  it  was  paid  to  him  and  procured  the  re- 
lease of  Mrs.  Conant.    The  plaintiff  was  not  buying  or  paying  off 

'  The  mortgage  purported  to  be  executed  hy  the  father  of  Van  Riper  upon 
the  father's  land. 

'This  tnortRaRC  upon  whicli  Walker  loaned  his  money  was  taken  in  the 
name  of  Ilelen  M.  Dudley,  but  was  immediately  assigned  to  him. 


CHANGE   OF   DEFENDANT'S    POSITION.  281 

the  Conant  mortgaf^e ;  he  was  loaning-  $3,000  to  Van  Riper's  father, 
as  he  supposed,  upon  good  security. 

But  Mrs.  Conant  would  not  have  parted  with  her  securities  with- 
out the  payment  of  the  deht,  and,  if  this  money  can  be  recovered 
back  from  her  by  the  plaintiff,  her  situation  is  changed,  and  with- 
out her  fault,  beyond  all  possible  return  or  restoration.  Her  note 
and  mortgage  have  been  destroyed  by  the  joint  of  action  of  Van 
Riper  and  the  plaintiff's  agent,  and  cannot  be  returned  to  her.  She 
has  therefore  lost  the  power  that  the  possession  of  these  papers 
might  have  given  her  in  the  collection  of  her  debt,  and  it  is  there- 
fore most  inequitable  to  hold  that  she  shall  not  only  lose  her  debt, 
but  also  the  evidences  of  it  (false  though  they  may  be  as  against  the 
elder  Van  Riper),  for  the  benefit  of  the  plaintiff,  who  has  been 
equally  negligent  with  her  in  making  these  loans,  and  through  whose 
negligence,  and  with  no  fault  of  hers,  she  has  lost  her  note  and 
mortgage  beyond  recall,  which  note  and  mortgage  she  would  not 
have  surrendered  except  upon  the  payment  of  her  debt. 

A  reference  to  the  opinion  filed  when  the  case  was  here  before 
[65  Mich.  194],  and  the  authorities  there  cited,  is  sufffcient  to  show] 
that,  under  the  case  as  now  made,  the  plaintiff  cannot  recover.     He  } 
must  bear  the  consequences  of  his  own  negligence,  as  the   situa-^ 
tion  of  Mrs.  Conant  has  been  changed  by  his  acts  so  that  in  equity 
she  cannot  be  asked  to  return  the  money.     She  received  it  in  good 
faith,  in  satisfaction  of  a  just  and  equitable  claim,  and  when  it  was 
due  on  honor  and  in  conscience.     Walker  v.  Conant,  65  Mich.  197, 
198  (31  N.  W,  Rep.  787,  788).     And  the  authorities  are  uniform  i 
that  where  the  money  is  received  in  good  faith,  and  in  the  ordinary  ' 
course  of  business,  and  for  a  valuable  consideration,  it  cannot  be  ! 
recovered   back  because  the  money   was   fraudulently   obtained   of  i 
some  other  person  by  the  payor.    To  hold  otherwise  would  be  to  put 
every  man  who  receives  money  in  the  due  course  of  his  business 
upon  inquiry,  at  his  peril,  as  to  the  manner  in  which  such  money  was 
procured  by  the  payor.     Justh  v.  Bank,  56  N.  Y.  484;  Mason  v. 
Waite,  17  Mass.  563;  Warren  v.  Haight,  65  N.  Y,  171,  178;  Reed 
v.  Bank,  6  Paige  337;  Currie  v.  Misa,  12  Moak,  Eng.  R.  592,  605  ; 
Watson  V.  Russell,  31  L,  J.  Q.  B.  304;  Rapalje  v.  Emory,  2  Dall.  51, 
54;  Stevens  v.  Board,  etc.,  79  N.  Y.  183. 

The  judgment  should  be  affirmed  with  costs. 

Champlin  and  Long,  JJ.,  concurred  with  Morse,  J. 

Sherwood,  C.  J.  (dissenting). — *  *  *  *  It  is  said  by  my 
Brother  Morse,  in  regard  to  Mrs.  Conant's  giving  up  her  note  and 
mortgage :  "Her  situation  is  changed,  and  without  her  fault,  beyond 
all  possible  return  or  restoration."  If  by  this  it  is  meant  she  has 
given  up  for  destruction  a  forged  note  and  mortgage  w'hich  she 
received  for  a  loan  of  money  made,  it  is  true ;  but  if  by  it  is  meant 
that  her  legal  or  equitable  rights  are  changed,  in  the  event  she  is 
obliged  to  return  the  money  she  received  of  Mr.  Walker,  I  confess 
my  inability  to  discover  such  change.  She  certainly  never  had  any 
right,  legal  or  equitable,  to  have  this  money  of  Mr.  Walker,  unless  a 


282  MISTAKE    OF   FACT. 

forged  note  and  mortgage  can  be  regarded  as  legal ;  neither  were 
they  of  any  validity  or  value  to  her  when  they  were  in  existence  and 
in  her  hands.  She  had  a  valid  claim  against  Van  Riper,  the  forger, 
but  never  had  one  against  the  plaintiff,  or  any  one  else ;  and  when  he 
paid  the  money  to  her  it  was  under  a  mutual  mistake  of  facts. 

To  hold  such  a  payment  valid,  and  give  the  payee  the  benefit  of 
the  same,  would  be  unjust  and  inequitable,  and  I  can  never  consent 
to  a  judgment  which  will  allow  the  felonious  transactions  of  a 
criminal  to  have  the  effect  and  be  governed  by  the  same  rules  which 
regulate  the  good-faith  dealings  and  transactions  of  honest  people. 
I  know  it  is  said  that  she  has  lost  her  note  and  mortgage,  and 
"Has  therefore  lost  the  power  that  the  possession  of  these  papers 
might  have  given  her  in  the  collection  of  her  debt ;  and  it  is  there- 
fore most  inequitable  to  hold  that  she  shall  not  only  lose  her  debt, 
but  also  the  evidences  of  it  (false  though  they  may  be  as  against 
the  elder  Van  Riper),  for  the  benefit  of  the  plaintiff ;  *  *  *  *  and 
that  she  would  not  have  surrendered  the  mortgage  but  for  the  pay- 
ment made." 

It  is  a  little  difficult  to  see  how  the  possession  of  these  forged 
papers,  under  the  circumstances,  could  have  aided  her  in  the  collec- 
tion of  her  debt.  The  forging  does  not  appear  to  be  questioned 
by  any  one.  It  is  conceded  by  the  parties,  and  the  evidence  to  prove 
it  remains  entirely  sufficient.  If  these  void  papers  could  have  given 
her  any  aid  in  making  collection  against  the  insolvent  forger,  it  does 
not  appear  in  the  record,  and  I  know  of  no  reason  which  suggests 
it.  The  fact  that  the  defendant  would  not  give  the  release  of  her 
mortgage  until  she  was  paid  the  amount  it  called  for  was  the  very 
reason  why  Mr.  Walker  made  the  payment  he  did  to  her.  Upon  the 
claim  thus  made,  I  can  find  no  facts  upon  which  to  base  the  claimed 
injustice  in  requiring  a  return  of  the  money  to  Mr.  Walker.  The 
rights  of  no  other  parties  have  intervened  or  are  involved  in  the 
case.  No  bona  fide  rights  of  other  innocent  persons  are  to  be  pro- 
tected. Under  the  circumstances  stated  in  the  record,  the  money 
sued  for  in  the  possession  of  Mrs.  Conant  was  Mr.  Walker's  money. 
She  received  it  of  him  without  any  consideration  whatever,  and  upon 
an  unquestionable  mistake  of  facts,  for  the  existence  of  which  neither 
party  was  in  fault  or  to  blame ;  and  to  hold  otherwise  I  can  but 
regard  as  a  misapplication  of  the  equitable  principles  governing  the 
rights  of  these  parties,  and  which  are  applicable  to  the  case.  The 
judgment  should  be  reversed,  with  costs,  and  a  new  trial  granted.^ 

*  In  Standish  v.  Ross.  3  Exch.  527  (1849),  the  court  says  (534)  :  "It  is  in  re- 
spect of  the  delay  of  the  remedy  only  that  the  defendant  could  not  be  put  in 
statu  quo.  We  think  these  circumstances  form  no  impediment  to  the  right  to 
recover,  if  money  were  paid  over  under  an  ordinary  mistake  of  fact;  it  could 
not  he  any  bar  to  the  recovery  of  it,  that  the  defendant  had  applied  the  money 
in  the  meantime  to  some  i)urchase  which  he  otherwise  would  not  have  made, 
and  so  could  not  be  placed  in  statu  quo." 

See  "Change  of  Position  as  a  Defense  to  an  Action  for  Money  Paid  by 
Mistake,"  by  C.  H.  Tuttle,  63  Albany  Law  Journal  147. 


CHANGE   OF    DEFENDANT'S    POSITION.  283 

CARSON  V.  M'FARLAND. 
2  Rawi.e  (Pa.)   118.— 1828. 

Huston,  J. — The  case  stated  was  to  be  considered  as  a  special 
verdict.  The  following  is  an  abstract  of  the  facts:  On  the  15th  of 
May,  1822,  Thomas  Carson,  the  plaintiff,  took  out  letters  of  admin- 
istration on  the  estate  of  John  Huston,  deceased.  He  filed  an  in- 
ventory in  due  time,  and  held  a  vendue  of  the  personal  property, 
which  personal  property  amounted  to  above  four  thousand  dollars. 
On  the  14th  of  March,  1823,  Thomas  Carson  paid  to  the  defendant 
two  hundred  and  twenty-three  dollars  and  forty-six  cents,  being  the 
amount  of  a  single  bill  given  by  John  Huston,  in  his  lifetime,  to  the 
defendant.  John  Huston  was  one  of  the  sons  of  James  Huston,  de- 
ceased, and  had  shortly  before  his  death  taken,  under  a  decree  of 
the  Orphans'  Court  of  Franklin  county,  a  part  of  his  father's  estate, 
at  an  appraisement,  and  entered  into  recognizances  to  pay  to  his 
brothers  and  sisters  their  shares  of  the  said  lands.  In  August, 
1823,  his  administrator,  Mr.  Carson,  applied  in  due  form  of  law  to 
the  Orphans'  Court,  for  an  order  to  sell  the  lands  of  John  Huston, 
deceased,  to  enable  him  to  pay  the  debts.  Not  being  able  to  obtain 
a  satisfactory  price,  the  order  was  continued  at  several  subsequent 
courts ;  and,  in  February,  1825,  the  land  was  sold  for  eight  thousand 
four  hundred  and  fifty  dollars,  and  in  April  following,  the  sale  was 
confirmed.  It  now  appeared,  that  the  proceeds  of  the  whole  real 
and  personal  estate  would  not  pay  the  debts  of  the  deceased ;  and, 
on  application  of  the  administrator,  the  court  appointed  auditors  to 
apportion  the  money  among  the  creditors.  In  April,  1827,  their 
report  was  made  and  confirmed  by  the  court.  By  this  report  the 
whole  proceeds  were  required  to  pay  debts  of  a  higher  degree  than 
specialities ;  in  fact,  the  recognizances  were  not  all  paid,  but  the 
conusees  have  received  something  less  than  their  whole  debts. 

The  plaintiff  then  brought  this  suit  to  recover  back  from  John 
McFarland,  the  defendant,  the  sum  of  two  hundred  and  twenty- 
three  dollars  and  forty-six  cents,  alleging  it  was  paid  him  under  a 
mistake  as  to  the  solvency  of  the  estate.  There  was  no  allegation 
of  any  actual  wasting  by  the  administrator ;  the  deficiency  arose  from 
the  accumulation  of  interest  and  the  depressed  price  of  lands.  It 
will  be  observed  that,  in  this  case  the  administrator  paid  the  money 
within  the  year,  and  to  a  person  undoubtedly  a  creditor  of  the 
estate ;  and  that,  if  there  was  any  mistake  as  to  the  solvency  of  the 
estate,  such  mistake  arose,  not  from  any  statement  or  representa- 
tion of  the  defendant,  but  from  some  other  cause. 

The  law,  as  it  regards  the  liability  of  administrators  or  exec- 
utors, and  how  far,  and  under  what  circumstances,  they  may  be- 
come personally  liable  for  the  debts  of  the  estate  they  represent,  is 
not  an  unimportant  part  of  our  jurisprudence.  I  do  not  mean  to 
go  out  of  the  present  case,  or  even  to  hint  an  opinion  on  some  of 


284  MISTAKE   OF    FACT. 

the  topics  discussed,  and  which  must  present  themselves  to  the  mind. 
In  England,  after  some  variance  of  decision,  it  seems  to  have  been 
settled  at  one  time,  that  a  creditor,  or  even  another  legatee,  could, 
in  some  cases,  compel  a  legatee,  who  had  received  his  legacy,  to  re- 
fund, in  case  of  a  deficiency  of  assets.  This  is,  however,  with  some 
restriction ;  for,  if  the  assets  were  sufficient  at  the  decedent's  death, 
but  were  wasted  by  his  executor,  there  was  no  refunding  in  favor  of 
the  legatee,  or  perhaps  of  the  creditor ;  and  a  further  distinction 
seems  to  have  existed,  as  to  refunding  in  favor  of  the  legatee  or 
creditor,  when  the  executor  was  insolvent,  and  in  favor  of  the 
executor,  who  would  lose,  unless  he  could  compel  those  who  had 
received  to  refund.  See  i  Vern.  94,  460,  469 ;  i  P.  Wms.  495 ; 
I  Anstruther,  112;  Com.  Dig.  630;  Chancery,  Legacy  (3  G.  3); 
I  Vern.  162 ;  2  Johns.  Chan.  626,  627. 

But  even  there,  on  reading  carefully  the  cases  cited,  there  will  be 
found  some  reason  to  believe  it  was  only  where  refunding  receipts 
were  taken,  or  in  consequence  of  the  peculiar  jurisdiction  and  au- 
thority of  the  Court  of  Chancery,  that  any  one,  who  had  received 
only  what  was  at  the  time  supposed  due  to  him,  would  be  compelled 
to  refund.  2  Com.  Dig.  Chan.  (3  G.  3)  ;  2  Ventris  360.  There 
is  in  I  P.  Wms.  355  (Pooley  et  al  v.  Ray),  a  dictum  of  the 
master  of  the  rolls,  that  a  creditor  who  has  received  money  due 
him  from  the  estate,  may  be  sued,  and  compelled  to  refund  in 
favor  of  another  creditor ;  but,  on  a  rehearing  of  the  case,  nothing  is 
said  on  this  subject.  2  P.  Wms.  291,  297;  Coppin  v.  Coppin,  2  Ves. 
192.  There  is  not,  it  is  believed,  in  the  English  authorities  before 
our  Revolution,  any  direct  decision,  that  a  creditor,  who  has  been 
paid  a  debt  due  him,  may  be  compelled  to  refund  in  favor  of  another 
creditor  though  it  must  have  often  happened,  that  one  received  all 
the  assets  and  another  received  nothing,  or  was  paid  out  of  the 
estate  of  the  executor ;  and  there  are  express  decisions  to  the  con- 
trary.   See  2  Ventris  260 ;  Com.  Dig.  Chancery  393. 

In  this  case,  the  administrator  paid  money  justly  due,  and  paid 
it  within  the  year  allowed  by  our  law,  to  ascertain  the  situation  of  the 
estate.  The  assets  were,  or  ought  to  have  been,  better  known  to 
the  administrator,  than  anybody  else.  No  accidental  failure  of  the 
fund  occurred,  to  any  material  extent ;  the  defendant  has  no  money 
to  which  in  honesty  and  conscience  he  is  not  entitled,  as  against  the 
estate  of  the  deceased.  The  hardship  on  the  plaintifif  may  be  great. 
The  hardship  on  the  defendant,  if  called  on  to  refund,  would  not  be 
small ;  and  the  confusion,  inconvenience  and  general  uncertainty 
which  would  follow  from  a  decision,  that,  an  honest  creditor,  who 
had  gotten  an  honest  debt,  was  liable  to  be  sued,  and  compelled  to 
repay,  would  be  so  great,  would  make  the  settlement  of  estates  so 
uncertain  and  so  interminable,  that  we  think  the  plaintiff  ought  not 
to  recover. 

Judgment  affirmed. 


l/ 


CHANGE    OF    DEFENDANT'S    POSITION.,-,  285 


TARPLEE  V.  CAPP. 

25  Ind.  App.  56. — 1900. 

Wiley,  C.  J. — This  was  an  action  by  appellee,  as  administrator  de 
bonis  non  of  the  estate  of  James  W.  Anderson,  deceased,  against 
appellant,^  to  recover  an  overpayment  made  to  him  by  a  former 
executor  in  the  belief  that  the  estate  was  solvent.  The  case  was 
put  at  issue,  tried  by  the  court,  a  special  finding  of  facts  made,  and 
conclusions  of  law  stated  thereon,  favorable  to  appellee.  Final 
judgment  was  rendered  accordingly.    *    *    *    ""' 

The  first  objection  urged  to  the  complaint  is  that  the  appellee, 
as  administrator  de  bonis  non,  has  no  right  to  bring  and  maintain 
this  action.  While  there  is  some  conflict  in  the  adjudicated  cases,  we 
are  inclined  to  the  view  that  the  weight  of  the  authorities  and  sound 
reason  support  appellee's  right  to  maintain  the  action.  In  Thornton 
&  Blackledge  on  Administration  and  Settlement  of  Estates,  §  169, 
p.  453,  the  rule  is  stated  to  the  efi^ect  that  where  an  administrator 
pays  to  a  creditor  of  the  estate  the  full  amount  of  his  claim,  believing 
the  estate  is  solvent,  and  it  turns  out  that  it  is  insolvent,  such  ad- 
ministrator may  recover  back  the  excess  in  amount  paid,  if  such 
claim  is  not  a  preferred  one.  In  East  v.  Ferguson,  59  Ind.  169, 
it  was  held  that,  where  a  settlement  was  made  with  a  creditor  of  an 
estate,  and  his  claim  allowed  in  full  upon  a  mutual  mistake,  that 
the  estate  was  solvent,  and  the  claim  is  not  a  preferred  one,  such 
facts  will  constitute  such  a  mistake  as  will  be  relieved  against,  and 
an  action  will  lie  to  recover  the  excess.  In  Wolf  v.  Beaird,  123  111. 
585,  15  N.  E,  161,  it  was  held  that  where  an  executor,  under  the 
honest  belief  that  the  estate  was  solvent,  pays  a  creditor  in  excess 
of  his  pro  rata  distributive  share,  he  may  recover  back  the  over- 
payment in  an  action  for  money  had  and  received  for  the  use  of 
the  estate.  It  was  also  held  in  that  case  that  it  could  make  no  differ- 
ence to  the  defendant  whether  the  plaintiff  sued  in  his  representative 
capacity  or  in  his  individual  name.  It  has  been  held  that,  where  an 
administrator  of  a  deceased  member  of  a  firm,  relying  upon  state- 
ments contained  in  the  reports  and  inventory  of  the  surviving 
partner  of  his  decedent,  paid  to  one  of  the  heirs  and  distributees  of 
the  estate  represented  by  the  administrator  a  sum  in  excess  of  the 
amount  she  was  entitled  to  receive  by  reason  of  a  depreciation  in 
the  value  of  the  estate  of  the  deceased  partner,  the  administrator 
was  entitled  to  recover  from  such  heir  and  distributee  the  ex- 
cess, whether  the  money  was  paid  to  her  at  her  request  or  was 
voluntarily  paid  to  her  without  request;  the  money  having  been 
paid  under  a  mistake  of  fact,  and  not  under  a  mistake  of  law.  Stokes 
V.  Goodykoontz,  126  Ind.  535,  26  N,  E.  391.    The  court,  by  Elliott, 

*  A  creditor  of  Anderson. — Ed. 


286  MISTAKE   OF    FACT. 

J.,  said :  "The  money  paid  by  the  administrator  was  paid  under  a 
mistake  of  fact,  and  not  under  a  mistake  of  law.  The  facts  which 
induced  the  administrator  to  pay  the  money  *  *  *  *  were  pre- 
sented to  him  in  a  lawful  mode,  and  he  had  a  right  to  rely  upon 
them." 

In  Henry's  Probate  Law,  §  333,  it  is  said :  "As  a  rule,  an  over- 
payment to  a  creditor,  made  by  an  administrator  or  an  executor, 
may  be  recovered ;  it  being  inferred  that  he  only  intended  to  make 
such  payment  as  the  estate  could  afford,  and  not  to  subject  himself 
to  personal  liability  on  account  of  a  deficiency  of  assets.  This  is, 
however,  contrary  to  the  common-law  rule.  But  it  is  probably 
essential  to  the  recovery  that  such  payment  has  been  made  under  the 
impression  that  the  estate  was  solvent."  Smith  v.  Smith,  76  Ind. 
236,  is  in  point.  In  that  case  the  executors  paid  to  appellant,  who 
was  a  legatee  under  the  will  of  the  decedent,  a  certain  amount  of 
money  and  specific  property.  No  account  had  been  taken  of  the 
claim  of  the  widow  to  her  statutory  allowance  of  $500,  and  it  turned 
out  that,  after  the  distribution  to  appellant  (the  residuary  legatee), 
there  was  not  left  sufficient  assets  with  which  to  pay  the  widow's 
claim  for  $500.  Referring  to  the  rule,  and  the  authorities  in  sup- 
port of  it,  that  ordinarily  the  payment  of  a  demand  without  com- 
pulsion, and  without  fraud,  and  with  a  full  opportunity  of  obtaining 
such  knowledge,  cannot  be  recovered  back,  the  court,  by  Bicknell, 
C.  C,  said :  "But  such  a  rule  is  not  applicable  to  legacies,  or  to 
money  paid  upon  distribution  by  an  executor.  A  legatee  or  dis- 
tributee may  be  required  to  give  a  bond  conditioned  to  refund  his 
ratable  proportion  of  the  estate,  if  necessary  (Decedents'  Act, 
§§  120,  140)  ;  and  the  failure  of  the  executor  to  take  out  such  a  bond 
will  not  release  the  legatee  or  distributee  from  his  liability  to  refund 
when  necessary  for  the  payment  of  debts,  legacies,  or  claims."  The 
following  cases  are  also  in  point :  Mansfield  v.  Lynch,  59  Conn. 
320,  22  Atl.  313,  12  L.  R.  A.  285;  Walker  v.  Hill,  17  Mass.  380; 
Alexander  v.  Fisher,  18  Ala.  374;  Rogers  v.  Weaver,  5  Ohio  536; 
Wheadon  v.  Olds,  20  Wend.  174;  Barnett  v.  Van  Meter,  7  Ind. 
App.  45,  33  N.  E.  666. 

It  is  also  urged  that  the  complaint  is  bad  because  it  does  not 
allege  that  a  final  dividend  had  been  ascertained  and  declared  by 
the  court  in  which  the  estate  was  pending  for  settlement.  We  do 
not  think  this  objection  is  well  taken.  It  is  alleged  that  all  the  assets 
of  the  estate  had  been  reduced  to  cash ;  that  there  was  in  the 
hands  of  appellee  $84,988.56  to  be  applied  on  the  general  debts ; 
that  the  claims  filed  amounted  to  $110,952.99,  and  that  the  estate 
could  only  pay  ']yy2  per  cent,  on  the  dollar  on  the  general  claims. 
It  is  also  stated  on  this  basis  what  the  overpayment  to  appellant  was. 
These  averments  are  sufficiently  definite  to  obviate  the  objections 
to  the  complaint  under  consideration.  We  are  satisfied  from  the 
authorities,  and   upon  sound   reason,   that  the   complaint   states   a 


CHANGE    OF    DEFENDANT'S    POSITION.  287 

led  1 


1/ 


cause  of  action,  and  that  the  court  correctly  overruled  the  demurrer 


PHETTEPLACE  v.  BUCKLIN. 

18  R.  I.  297.— 1893. 

Matteson,  C.  J. — This  is  an  action  of  assumpsit  to  recover  money 
paid  to  the  defendant  in  it^norance  of  facts.  The  case  was  heard  by 
the  court  of  common  pleas,  without  a  jury,  and  judgment  was 
rendered  for  the  defendant  for  his  costs.  The  plaintiff  petitions  for 
a  new  trial,  and  alleges  that  the  judgment  was  against  the  evidence. 
The  facts,  which  are  undisputed,  as  shown  by  the  report  of  the 
testimony,  are  as  follows :  Jane  M.  Woodward,  late  of  Providence, 
died  leaving  a  last  will  and  testament  in  which  WilHam  G.  R. 
Mowry,  also  late  of  Providence,  deceased,  was  named  as  executor, 
and  who  qualified  as  such  by  giving  bond  with  Nathaniel  S.  Mowry 
and  the  plaintiff  as  sureties.  The  executor  was  not  related  to  any 
of  the  persons  interested  under  the  will,  nor  does  it  appear  that  he 
had  ever  known  Catherine  C.  Flagg,  who  was  named  in  the  will  as  a 
legatee.  The  executor,  becoming  involved  financially,  misapplied 
the  funds  of  the  estate  of  the  testatrix,  and  became,  as  did  also 
Nathaniel  S.  Mowry,  the  plaintiff's  co-surety,  utterly  insolvent.  The 
plaintiff,  knowing  the  condition  of  the  executor  and  his  co-surety, 
and  recognizing  the  liability  which  he  had  incurred  as  surety,  re- 
quested his  principal  to  furnish  him  with  a  list  of  the  legatees  to 
whom  he  was  liable,  and  on  receiving  it  on  or  about  August  i,  1891, 
made  his  checks  payable  to  the  legatees  named  in  the  will  for  the 
amounts  of  their  respective  legacies,  and  gave  them  to  the  executor 
for  delivery  to  the  respective  legatees.  One  of  these  checks  was 
payable  to  Catherine  C.  Flagg,  who,  though  named  in  the  will  as  a 
legatee,  had  died  without  leaving  a  lineal  descendant,  in  St.  Louis, 
Mo.,  August  29,  1 88 1,  several  years  prior  to  the  death  of  the 
testatrix.  The  plaintiff  had  no  knowledge  of  her  death,  but  sup- 
posed, and  was  led  to  suppose  by  the  list  furnished  him  by  the 
executor,  that  she  w^as  then  living ;  nor  is  there  any  evidence  that  the 
executor  knew,  at  the  time  of  furnishing  the  list  to  the  plaintiff"  and 
the  delivery  of  the  check,  of  her  decease.  The  check  was  delivered 
by  the  executor  to  the  defendant  and  by  him  indorsed,  "Estate  of 
Catherine  C.  Flagg,  Frederick  A.  Bucklin,  Administrator,"  and  de- 
posited in  bank,  and  paid  by  the  bank  on  which  it  was  drawn  through 
the  clearing  house,  and  charged  in  the  plaintiff's  account.  Two 
months  or  so  after  the  delivery  of  the  check  to  the  defendant,  the 
plaintiff  first  learned  of  the   decease  of  Catherine   C.   Flagg,   and 

^  See  also,  accord,  Mansfield  v.  Lynch,  ante,  p.  270,  note.  As  to  payment 
under  mistake  of  law,  by  an  executor,  see  Hemphill  v.  Moody,  and  note,  post, 
P.  409. 


288  MISTAKE    OF    FACT. 

that  she  died  prior  to  the  testatrix,  when  called  on  by  the  attorney 
of  the  residuary  legatees  to  pay  them  the  amount  of  the  legacy 
given  to  her,  but  which  had  lapsed  by  her  death  without  a  lineal 
descendant  prior  to  the  death  of  the  testatrix.  In  the  meantime  the 
defendant,  on  or  about  September  2,  1891,  had  distributed  the  money 
received  on  the  check  to  the  legatees  of  Catherine  C.  Flagg,  of 
whose  estate  he  was  administrator.  One  of  these  legatees  resided  in 
Providence,  and  the  other  in  Melbourne,  Australia.  In  November 
following,  a  written  demand  for  the  return  of  the  money  was  made 
by  the  executor  on  the  defendant.  As  the  defendant  did  not  comply 
with  this  demand,  the  plaintiff  brought  this  suit. 

As  we  have  seen,  the  case  does  not  show  that  either  the  plaintiff 
or  the  executor  knew,  or  had  reason  to  know,  at  the  time  of  the  de- 
livery of  the  check  to  the  defendant,  that  Catherine  C.  Flagg  had 
died  before  the  testatrix,  leaving  no  lineal  descendant,  so  that  the 
legacy  to  her  had  lapsed.  The  check,  therefore,  on  which  the  de- 
fendant obtained  the  money  sued  for,  was  delivered  in  ignorance 
of  facts  by  reason  of  which  neither  the  executor  nor  the  plaintiff 
as  his  surety  was  under  any  liability  to  the  defendant.  The  money 
obtained  by  the  defendant  on  the  check  was  money  for  which  there 
was  no  consideration,  and  which  the  defendant  in  justice  and  good 
conscience  was  not  entitled  to  receive.  The  principle  is  well  settled 
that,  if  a  person  pays  money  which  he  was  not  liable  to  pay  in  ignor- 
ance of  the  facts,  he  may  recover  the  money  so  paid.  Garland  v. 
Bank,  9  Mass.  408 ;  Mayer  v.  Mayor,  etc.,  63  N.  Y.  455 ;  Bank  v. 
Eltinge,  40  N.  Y.  391 ;  and  see  note  to  Mariott  v.  Hampton,  3  Smith 
Lead.  Cas.  400  et  seq.  It  is,  however,  subject  to  the  qualification 
that,  if  it  is  inequitable  to  allow  a  recovery,  the  money  cannot  be 
recovered,  but  the  person  making  the  payment  must  bear  the  loss. 
Mayer  v.  Mayor,  etc.,  63  N.  Y.  455.  The  defendant  seeks  to  bring 
himself  within  this  qualification,  and  contends  that  having  paid  the 
money  received  from  the  plaintiff  to  the  legatees  under  the  will  of 
Catherine  C.  Flagg,  one  of  whom  resides  in  Australia,  and  is  there- 
fore not  readily  accessible,  before  the  plaintiff  or  the  executor  de- 
manded repayment,  his  position  is  so  changed  that  it  would  be  in- 
equitable to  allow  the  plaintiff  to  recover.  We  do  not  think  it  is 
enough  to  relieve  the  defendant  from  liability  that  he  has  paid  the 
money  to  others,  even  though  such  payment  was  made  before  a  re- 
payment was  demanded.  He  must  show  that  a  recovery  by  the 
plaintiff  would  be  inequitable.^  If  at  the  time  he  received  the  plain- 
tiff's money  he  knew  that  Catherine  C.  Flagg  had  died  before  the 
testatrix,  leaving  no  lineal  descendant,  so  that  the  legacy  to  her  had 
lapsed,  he  was  bound  to  have  communicated  those  facts  to  the 
plaintiff  or  to  the  executor.  When  a  person  pays  money  in  ignor- 
ance of  circumstances  with  which  the  receiver  is  acquainted,  and 
which,  if  disclosed,  would  have  prevented  the  payment,  the  parties 
do  not  deal  on  equal  terms,  and  the  money  is  held  to  be  unfairly 

'Accord,  as  to  burden  of  proof,  Mayer  v.  Mayor,  6;^  N.  Y.  455  (1875). 


CHANGE   OF    defendant's    POSITION.  289 

obtained,  and  may  be  recovered.  Martin  v.  Morgan,  i  Brod.  &  B. 
289 ;  George  v.  Taylor,  55  Tex.  97 ;  8  Amer.  &  Eng.  Enc.  Law,  645, 
note  4;  Kerr,  Fraud  &  M.  99.  The  testimony  on  the  part  of  the 
defendant  does  not  negative  such  a  state  of  facts,  and  certainly, 
if  such  a  state  of  facts  existed,  it  would  not  be  inequitable  to  per- 
mit the  plaintiff  to  recover,  even  if  the  defendant  had  paid  the  money 
to  others  before  demand  for  its  repayment. 

Again,  assuming  that  the  defendant  had  no  such  knowledge,  but 
received  the  money  innocently,  he  should  at  least  show  that  he  has 
made  some  effort  to  restore  the  money,  or  that  such  effort  would 
be  unavailing.  The  testimony  does  not  show  that  he  has  made  the 
slightest  effort  in  that  direction,  not  even  that  he  has  requested  the 
legatee  here  in  Providence  to  give  back  the  portion  of  the  money 
received  by  such  legatee.  It  is  possible  that  a  simple  request  to  the 
legatees,  accompanied  by  a  statement  of  the  facts  showing  the 
injustice  of  their  retention  of  the  money,  would  result  in  their  re- 
turning it  to  be  restored  to  the  plaintiff.  Until  all  reasonable  efforts 
have  been  made  by  the  defendant  to  get  back  the  money,  and  have 
proved  unavailing,  how  can  it  be  said  that  it  would  be  inequitable 
to  permit  a  recovery  ? 

But  assuming  again,  that  such  efforts  had  been  made,  and  had 
proved  unavailing,  we  think  it  may  well  be  doubted  whether  such 
a  state  of  facts  would  be  enough  to  render  a  recovery  by  the  plain- 
tiff inequitable.  To  have  that  effect,  must  there  not  be  something 
besides  the  mere  payment  of  the  money  by  the  plaintiff  which  has 
caused  the  position  of  the  defendant  to  be  changed  ?  Must  there  not 
be  some  negligence  or  laches  on  the  part  of  the  plaintiff  in  not 
promptly  demanding  repayment  of  the  money  on  discovery  of  the 
true  state  of  facts,  but  for  which  the  defendant's  change  of  posi- 
tion might  not  have  occurred  ?  In  Durrant  v.  Commissioners,  L.  R. 
6  Q.  B.  Div.  234,  it  was  held  that  a  plaintiff  who  had  paid  by  mistake 
a  tithe  rent  charge  for  lands  not  in  his  occupation  could  recover  the 
amount  from  the  defendants,  though,  at  the  time  when  he  dis- 
covered his  mistake,  the  remedy  of  the  defendants  against  the  lands 
actually  chargeable  had  become  barred.  Again,  in  Bank  v.  Eltinge, 
40  N.  Y.  391,  the  sheriff,  having  received  an  execution  issued  on 
a  judgment  in  favor  of  the  defendant,  and  afterwards  one  on  a  sub- 
sequent judgment  in  favor  of  the  plaintiff  against  the  same  de- 
fendant, and  before  the  last  had  run  out,  but  after  the  sixty  days 
had  expired  as  to  the  first,  made  a  levy  on  personal  property  not 
sufficient  to  satisfy  both,  sold  it,  and  paid  over  the  proceeds  to  the 
defendant  in  satisfaction  of  his  execution,  with  the  assent  of  the 
plaintiff,  neither  party  knowing  that  the  execution  had  run  out  before 
the  levy,  but  supposing  the  contrary.  It  was  held  that  the  plaintiff 
could  recover  the  money  as  paid  under  a  mistake  of  fact,  though  the 
defendant's  judgment  had  been  in  consequence  of  the  receipt  of  the 
money  canceled  and  discharged  of  record.  And  see  Standish  v. 
Ross,  3  Exch.  527 ;  Rheel  v.  Hicks,  25  N.  Y.  289 ;  National  Bank 
Woodruff's  Cases — 19 


J 


290  MISTAKE   OF    FACT, 

of  Commerce  v.  National  Mech.  Bank.  Ass'n,  55  N.  Y.  211.  In  the 
case  at  bar  neither  the  plaintiff  nor  executor  learned  the  true  state 
of  the  facts  till  the  plaintiff  was  called  on  by  the  attorney  for  the 
residuary  legatees  to  pay  to  them  the  amount  of  the  legacy  which 
the  plaintiff  had  already  paid  to  the  defendant.  The  precise  date 
when  this  demand  on  the  plaintiff  was  made  does  not  appear.  The 
plaintiff  testifies  that  it  was  two  months  or  more  after  he  had 
made  the  check  and  placed  it  in  the  hands  of  the  executor  for  de- 
livery. It  is  not  claimed,  however,  that  the  demand  on  the  plaintiff 
by  the  attorney  of  the  residuary  legatees  was  before  the  defendant 
had  distributed  the  money,  and,  consequently,  no  negligence  or 
laches  on  the  part  of  the  plaintiff  after  discovering  the  facts  could 
have  had  any  effect  in  causing  the  defendant  to  change  his  position 
by  the  payment  of  the  money ;  and,  if  not,  it  is  difificult  to  see  how 
there  can  be  any  equity  in  his  favor  to  prevent  the  plaintiff's  re- 
covery. 

The  defendant  contends  that  the  check,  having  been  made  payable 
to  Catherine  C.  Flagg,  was  illegally  paid  by  the  bank  on  the  de- 
fendant's indorsement,  and,  therefore,  that  the  bank  could  not  charge 
the  payment  to  the  plaintiff's  account ;  that  the  payment  is  to  be  re- 
garded as  a  payment  from  the  money  of  the  bank,  and  not  from  the 
plaintiff's ;  and  hence  that  the  plaintiff's  remedy  is  against  the  bank, 
rather  than  the  defendant.  While  it  is  perhaps  true  that  the  check 
was  illegally  paid  by  the  bank,  and  that  the  plaintiff,  if  he  had  seen 
fit,  could  have  proceeded  against  it,  we  do  not  think  that  he  was 
compelled  to  do  so,  but  that  it  was  competent  for  him  to  ratify  or 
adopt  the  payment,  and  to  proceed  against  the  defendant.  Plaintiff's 
petition  for  a  new  trial  granted. 


5.      PLAINTIFF  NEGLIGENT. 

UNITED  STATES  v.  NATIONAL  PARK  BANK  OF  NEW 

YORK. 

6  Fed.  852  (Dist.  Ct.  S.  D.  N.  Y.)— 1881. 

Choate,  D.  J. — This  is  a  suit  brought  to  recover  the  sum  of  $100, 
paid  under  a  mistake  of  fact.  A  jury  trial  has  been  waived.  There 
is  no  dispute  as  to  the  facts.  One  Dunlap  made  application  for 
bounty  money,  and  in  settlement  of  the  claim  a  paymaster  of  the 
United  States  drew  a  draft  on  the  assistant  treasurer  at  New  York 
for  the  sum  of  $100,  payable  to  the  order  of  Dunlap.  The  defend- 
ant received  the  draft  from  another  bank  for  collection,  indorsed  in 
the  name  of  Dunlap,  and  also  indorsed  by  such  other  bank.  With- 
out indorsing  the  draft,  the  defendant  presented  it  to  the  assistant 
treasurer  in   New  York,  and   received  the  $100,   on  the   i6th  of 


PLAINTIFF    NEGLIGENT.  29I 

March,  1869,  and  immediately  thereafter  allowed  it  as  a  credit  in 
its  account  with  the  bank  from  which  it  was  received.  The  indorse- 
ment of  Dunlap's  name  was  a  forgery. 

This  is  a  clear  case  of  payment  under  a  mutual  mistake  of  fact. 
It  is  claimed,  however,  for  the  defendant  that  the  plaintiff  cannot 
recover  on  account  of  its  negligence  in  informing  the  defendant  of 
the  forgery  after  its  discovery  that  the  indorsement  was  forged. 
It  is  claimed  that  the  plaintiff  discovered  the  forgery  when  Dunlap 
made  another  application  for  the  bounty,  which  he  did  on  the  24th 
of  February,  1879,  and  that  no  information  of  the  forgery  was  com- 
municated by  the  plaintiff  to  the  defendant  till  February  3,  1880. 
It  is  not  alleged  in  the  answer,  nor  is  there  any  proof,  that  the  de- 
fendant has  suffered  any  loss  or  damage  by  reason  of  this  delay,  or 
lost  any  remedy  over  against  the  party  from  whom  it  received  the 
draft  and  to  whom  it  paid  the  money.  But  it  is  contended  that 
such  delay  is  itself  negligence  of  such  a  character  that  loss  or  dam- 
age will  be  presumed  to  have  resulted  from  it.  I  think  this  point 
is  not  sustained,  either  by  authority  or  the  reason  of  the  thing. 
Money  thus  paid  under  a  mistake  of  fact  is  recoverable,  because  it^ 
is  paid  without  any  actual  consideration,  and  cannot  equitably  be  re- 
tained. The  rule  is  equitable,  and  may  be  defeated  where  to  allow 
the  recovery  would  be  inequitable.  Negligence  in  the  transaction,: 
unattended  with  any  loss  or  harm  resulting  from  such  negligence  to 
the  other  party,  surely  does  not  impair  the  equity  of  the  claim  against' 
him.  Such  negligence  does  not  touch  the  reason  of  the  rule  allow- 
ing the  recovery.  If  that  negligence  consists  in  delay  in  making  the 
reclamation,  with  what  justice  can  the  party  to  whom  the  payment 
w^as  made  say  that  though  he  received  the  money  under  a  mistake  of 
fact,  and  was  bound  to  return  it  a  year  ago,  and  could  not  justly  or 
equitably  keep  it  then,  because  it  did  not  belong  to  him ;  yet,  now 
that  the  party  paying  has  neglected  to  let  him  know  of  his  claim 
after  discovery  of  the  mistake,  he  can  justly  and  properly  keep  it? 
This  would  be  absurd. 

The  authorities  are  to  this  effect:  that  negligence  in  giving  in- 
formation of  the  mistake  to  the  other  party,  with  the  resulting 
loss  of  remedy  over,  is  a  defense,  but  otherwise  not.  The  doctrine 
rests  on  the  duty  which  the  party  paying  owes  to  the  other  to  shield 
him,  as  far  as  possible,  from  loss  or  damage  resulting  from  the 
mistake,  when  he  discovers  that  it  is  such.  If  the  failure  to  perform 
that  duty  results  in  loss  or  damage  to  the  other  party,  then  it  is  in- 
equitable that  he  should  be  obliged  to  refund.*  But  if  that  negli- 
gence has  made  no  difference  to  him  then  it  is  immaterial.  See 
Kingston  Bank  v.  Eltinge,  40  N.  Y.  391 ;  Mayer  v.  The  Mayor,  63 
N.  Y.  455;  Pardee  v.  Fiske.  60  N.  Y.  271 ;  Union  Bank  v.Leath. 
Nat.  Bank,  43  N.  Y.  456 ;  Allen  v.  Fourth  Nat.  Bank,  59  N.  Y.  19 ; 
Bank  of  Commerce  v.  Mechanic's  Banking  Ass'n,  55  N.  Y.  213 ; 
Continental  Nat.  Bank  v.  Nat.  Bank  Com.,  50  N.  Y  575.     These 

'Accord,  Skyring  v.  Greenwood,  4  B.  &  C.   (K.  B.)  281   (1825). 


292  MISTAKE   OF    FACT. 

cases,  it  is  true,  are  mostly  cases  where  the  negHgence  imputed  was 
in  making  the  payment  or  in  not  discovering  the  mistake,  but  I  think 
the  reasoning  on  which  they  proceed  appUes  with  equal  force  to  cases 
where  the  imputed  negligence  is  in  giving  information  after  dis- 
covery of  the  mistake.  U.  S.  v.  Union  Nat.  Bank,  D.  C,  S.  D. 
N.  Y,,  April  24,   1879    [10  Ben.  408;   s.   c.   28  Fed.   Cas.   333]; 

2  Parson's  Notes  and  Bills  597.    The  rule  declared  in  Price  v.  Neal, 

3  Burr.  1354,  which  precludes  recovery  where  the  mistake  con- 
sists in  the  erroneous  admission  as  genuine,  by  acceptance  or 
payment  of  a  draft  where  the  signature  of  the  drawer  was 
forged,  and  the  cases  following  it,  are  now  regarded  as  exceptions 
to  the  general  rule  that  negligence  in  making  the  payment,  even 
where  the  matter  mistaken  was  peculiarly  within  the  plaintiff's 
knowledge,  or  one  as  to  which  he  had  a  duty  of  inquiry,  unattended 
with  damage,  does  not  defeat  the  action.  Allen  v.  Fourth  Nat. 
Bank,  ut  siupra;  and  see  Welch  v.  Goodwin,  123  Mass.  71.  The 
cases  cited  by  the  defendant's  counsel,  where  delay  in  giving  notice 
that  money  received  was  counterfeit  was  held  fatal  to  the  recovery 
without  actual  proof  of  damage,  are  quite  different  in  principle  from 
this  case.  They  proceed  upon  the  theory  that  such  delay,  from  the 
nature  of  the  case,  must  necessarily  impair  the  remedies  over  of  the 
party  from  whom  the  money  was  received,  and  make  it  more  diffi- 
cult, if  not  impossible,  for  him  to  trace  out  the  source  from  which 
he  himself  received  it,  or  to  find  the  guilty  party  and  obtain  restitu- 
tion from  him.  Pindall's  Ex'rs  v.  N.  W.  Bank,  7  Leigh  (Va.)  617, 
and  cases  cited;  Gloucester  Bank  v.  Salem  Bank,  17  Mass.  22.  In 
the  present  case  the  defendant's  answer  shows  that  it  received  the 
draft  from  another  bank,  and  its  remedy  over  will  be  complete 
upon  the  plaintiff's  recovery  in  this  action.  Merchants'  Nat.  Bank 
V.  First  Nat.  Bank  of  Baltimore,  3  Fed.  Rep.  66. 

I  think  there  was  no  obligation  on  the  part  of  the  plaintiff  to 
surrender  or  tender  to  the  defendant,  upon  the  trial,  this  draft. 
The  possession  of  it  was  not  necessary  to  a  recovery  over.  I  see  no 
force  in  the  argument,  urged  by  defendant's  counsel,  that  the  plain- 
tiff has  no  just  claim,  ex  aeqtio  et  bono,  because  Dunlap  cannot  sue 
the  government  if  the  plaintiff  recovers ;  nor  is  there  any  force  in  the 
suggestion  that  the  suit  is  virtually  one  for  the  benefit  of  Dunlap, 
and  that  he  has  been  grossly  negligent.  What  the  government  may 
do  with  the  money,  or  what  its  duty  is  toward  Dunlap,  are  matters 
immaterial.  The  defendant  has  received  the  plaintiff's  money,  for 
which  it  gave  no  actual  consideration,  and  is  bound  in  law  and  ex 
aequo  et  bono  to  return  it.  It  is  unnecessary  to  consider  the  point 
made  for  the  plaintiff  that  there  was  no  such  negligence  in  this  case 
as  the  defendant's  arguments  have  assumed,  or  that,  if  there  was,  it 
would  not  operate  to  defeat  the  action  on  the  general  ground  that 


PLAINTIFF    NEGLIGENT.  293 

laches  is  not  imputed  to  the  j^overnment  by   reason  of  the  negU- 
gence  of  its  officers. 

Judgment  for  plaintiff,  with  interest  and  costs.^ 


6.      PLAINTIFF   NEGLIGENT  AND  DEFENDANT'S   POSITION   CHANGED. 

LAWRENCE  et  al.  v.  AMERICAN  NATIONAL  BANK. 

54  N.  Y.  432.— 1873. 

Earl,  C. — On  the  7th  day  of  May,  1866,  the  plaintiffs  made  up  a 
statement  of  their  accounts  with  Post,  which  showed  that  there  was 
a  balance  due  to  him  of  $10,643.20,  and  this  sum  they  paid  to  the 
defendant  as  his  assignee.  When  they  made  this  statement,  by  mis- 

'  In  the  Appleton  Bank  v.  McGilvray,  4  Gray  518,  522  (1855),  the  court  says: 
"It  is  no  answer  to  the  plaintiffs'  claim,  that  the  mistake  arose  from  the  neg- 
ligence of  the  plaintififs.  'Jhe  ground  on  which  the  rule  rests  is  that  money 
paid  through  misapprehension  of  facts,  in  equity  and  good  conscience  belongs 
to  the  party  who  paid  it;  and  cannot  be  justly  retained  by  the  party  receiv- 
ing it,  consistently  with  a  true  application  of  the  real  facts  to  the  legal  rights 
of  the  parties,  2  Saund.  PI.  &  Ev.  2d  Ed.  394.  The  cause  of  the  mistake 
therefore  is  wholly  immaterial.  The  money  is  none  the  less  due  to  the  plain- 
tiffs, because  their  negligence  caused  the  mistake  under  which  the  payment 
was  made.  The  case  would  have  been  different,  if  it  had  appeared  that  the 
defendants  had  suffered  any  damage,  or  changed  their  situation  as  respects 
their  debtor,  by  reason  of  the  laches  of  the  plaintiffs.  But  the  facts  show 
that  their  rights  were  wholly  unaffected  by  the  mistake  under  which  the  pay- 
ment was  made.  Nothing  occurred  subsequently  to  the  payment,  which  ren- 
ders it  unconscientious  to  recover  the  money  back.  It  is  therefore  clear  that  the 
defendants  have  money  belonging  to  the  plaintiffs  in  their  hands,  to  which 
they  show  no  legal  or  equitable  title.  Kelly  v.  Solari,  9  M.  &  W.  54;  Bell  v. 
Gardiner,  4  Man.  &  G.  1 1  ;  2  Smith's  Lead.  Gas.  243,  244." 
^^  In  Kingston  Bank  v.  Eltinge,  40  N.  Y.  391,  396  (1869),  the  court  says: 
"Care  and  diligence  are  not  controlling  elements  in  the  case.  It  is  a  question 
of  fact  merely.  The  inquiry  is,  are  the  parties  mutually  in  error,  and  did  they 
act  upon  such  mutual  mistake,  not  whether  they  ought  so  to  have  acted.  If, 
in  consequence  of  such  mutual  mistake,  one  party  has  received  the  property 
of  the  other,  he  must  refund,  and  this  without  reference  to  vigilance  or  neg- 
ligence. On  a  sale  and  purchase  of  real  estate,  the  rule  and  the  principle  are 
different.  It  is  a  case  of  a  bargain  in  which  the  law  requires  the  exercise 
of  care  and  attention.  A  party  cannot  then  allege  himself  to  be  ignorant  of 
a  fact,  of  which  he  was  put  upon  the  inquiry,  and  of  which  he  could  have 
obtained  a  knowledge  by  reasonable  diligence.  In  cases  of  bargains  and 
sales,  the  rule  is  applicable,  z'i^ilantibus  non  dormientibus  leges  sithvcniunt. 
Such  was  the  case  cited  of  Taylor  v.  Fleet,  4  Barb.  95,  and  of  which  there  are 
many  instances  in  the  books.  But  where  there  is  no  matter  of  contract,  no 
bargain  or  sale,  there  is  no  call  for  the  exercise  of  astuteness.  The  case  then 
becomes  one  of  fact.  Was  there  or  not  an  error  between  the  parties?  .A.nd 
the  determination  of  that  fact  controls  the  result.  Where  this  expression  of 
the  want  of  care  and  attention  is  used  in  reference  to  cases  of  simple  mis- 
takes of  fact,  by  which  one  has  thus  received  the  money  of  another,  and  that 
it  is  thus  used  in  many  cases  cannot  be  denied,  the  expressions  have  not  been 
duly  considered." 


294  MISTAKE   OF    FACT. 

take,  they  omitted  to  charge  Post  with  $5,000,  which  they  had  loaned 
him,  and  hence  they  overpaid  the  defendant  the  amount  of  this  sum, 
with  interest.  This  mistake  was  unknown  to  them,  and  was  mani- 
festly unknown  to  the  defendant.  Both  parties  must  have  supposed 
that  the  amount  paid  by  the  plaintiffs  was  the  amount  due,  and  hence 
there  was  a  mutual  mistake.  These  facts  furnish  good  ground  of  re- 
covery by  the  plaintiffs  unless  certain  other  facts  furnish  the  de- 
fendant with  a  defense.  (The  Kingston  Bank  v.  Eltinge,  40  N.  Y. 
391  ;  Union  National  Bank  of  Troy  v.  Sixth  National  Bank  of  N.  Y., 
43  N.  Y.  452 ;  Duncan  v.  Berlin,  46  N.  Y.  685.) 

It  is  claimed  that  it  was  plaintiffs'  mistake,  and  that  they  had  the 
means  in  their  possession  at  the  time  of  the  payment  for  the  dis- 
covery of  the  mistake,  and  that  they  were  negligent  in  not  discover- 
ing it.  The  authorities  above  cited  show  that  negligence  in  making 
a  mistake  does  not  deprive  a  party  of  his  remedy  on  account  thereof. 
It  is  the  fact  that  one  by  mistake  unintentionally  pays  money  to  an- 
other to  which  the  latter  is  not  entitled  from  the  former,  which  gives 
the  right  of  action,  and  the  fact  that  the  mistake  occurs  through 
negligence  does  not  give  the  payee  any  better  or  the  payer  any  worse 
title  to  the  money. 

It  is  further  claimed  that  the  defendant  settled  with  Wilson, 
Gibson  &  Co.,  who  were  sureties  for  Post's  liability  to  it,  and  that 
upon  such  settlement  they  were  credited  with  the  entire  amount  paid 
to  it  by  the  plaintiffs,  and  discharged,  and  hence,  that  it  has  been 
damnified  by  the  mistake  caused  by  the  plaintiffs.  The  authorities 
above  cited  show  that  this  is  no  answer  to  plaintiffs'  claim.  Unless 
the  plaintiffs  could  recover  of  the  defendant,  they  seem  to  have  been 
without  any  remedy,  as  Post  was  insolvent.  On  the  contrary,  the  de- 
fendant having  discharged  Wilson,  Gibson  &  Co.  from  their  lia- 
bility by  mistake,  can  avoid  the  discharge  and  resort  to  them  for  so 
much  as  it  is  compelled  to  pay  to  the  plaintiffs  in  this  action.  Hence 
it  is  not  clear  that  the  defendant  will  suffer  any  damage  on  account 
of  plaintiffs'  mistake.  ( Wheadon  v.  Olds,  20  Wend.  174 ;  McDougall 
V.  Cooper,  31  N.  Y.  498.)     *     *     *     * 

Judgment  affirmed.^ 

^In  Walker  v.  Conant,  65  Mich.  194,  197  (1887),  the  court  says:  "The 
rule  is  general  that  money  paid  under  a  mistake  of  material  facts  may  be 
recovered  back,  although  there  was  negligence  on  the  part  of  the  person 
making  the  payment;  but  this  rule  is  subject  to  the  qualification  that  the  pay- 
ment cannot  be  recalled  when  the  situation  of  the  party  receiving  the  money 
has  been  changed  in  consequence  of  tlic  payment,  and  it  would  be  inequitable 
to  allow  a  recovery.  The  person  making  the  payment  must  in  that  case  bear 
the  loss  occasioned  by  his  own  negligence.  Tf  circumstances  exist  which  take 
the  case  out  of  the  general  rule,  the  burden  of  proving  them  is  upon  the  de- 
fendant.   Mayer  v.  Mayor,  etc,  63  N.  Y.  457." 


PLAINTIFF    NEGLIGENT.  295 

WILSON  V.  BARKER. 

so  Me.  447.— 1862. 

Appleton,  C.  J. — The  facts,  upon  which  the  rights  of  these  par- 
ties depend,  are  few  and  not  controverted. 

On  November  8,  1843,  I^^vid  Pingree  and  Eben  S.  Coe  conveyed 
a  tract  of  land  in  Stetson  to  E.  G,  Allen,  who,  on  the  same  day,  mort- 
gaged the  premises  to  his  grantors  to  secure  in  part  the  purchase 
money.  The  deed  and  mortgage  were  duly  recorded,  and  the  latter 
was  assigned  to  the  defendant,  September  19,  1854,  and  the  assign- 
ment seasonably  recorded. 

E.  G.  Allen,  having  only  the  equity  to  redeem,  on  i6th  of  April, 
1850,  conveyed  by  deed  the  premises  purchased  to  D.  C.  and  C.  L. 
Whiting,  who,  on  the  same  day,  conveyed  them  in  mortgage  to  their 
grantor.  The  deed  was  not  recorded,  the  mortgage  was.  On  Sep- 
tember 13,  1853,  the  deed,  E.  G.  Allen  to  the  Whitings,  not  having 
been  recorded,  Messrs.  Shaw  &  Merrill  caused  an  attachment  to  be 
made  of  Allen's  right  of  redeeming  his  mortgage  to  Pingree  and 
Coe.  They  subsequently,  at  the  April  term  1856,  obtained  judg- 
ment, and,  on  the  30th  of  the  following  May,  this  equity  of  redemp- 
tion was  seized,  and,  on  2d  July,  of  the  same  year,  at  2  o'clock  p.  m., 
the  same  was  sold  to  the  plaintiffs  in  the  execution,  in  whom,  or  in 
their  assigns,  the  title  thus  acquired  became  perfected  by  lapse  of 
time.  All  these  proceedings  are  conceded  to  have  been  in  conformity 
with  law.  The  mortgage  of  the  Whitings,  dated  i6th  April,  1850, 
after  intermediate  assignments,  on  9th  February,  1856,  became  vested 
in  the  plaintiff". 

It  thus  appears  that  the  plaintiff,  to  make  his  mortgage  available 
and  his  title  under  it  good,  was  bound  to  procure  a  discharge  of  the 
mortgage  of  Allen  to  Pingree  and  Coe,  which  had  been  assigned 
to  the  defendant,  and  to  remove  the  attachment  of  Shaw  &  Merrill. 
In  this  state  of  the  title,  the  plaintiff,  on  the  26th  of  July,  1856, 
at  I  o'clock,  tendered  the  defendant  $230  on  account  of  the  mortgage 
of  Allen  to  Pingree  and  Coe,  assigned  to  him,  which  he  received. 
Subsequently,  being  doubtful  whether  the  amount  tendered  was 
sufficient,  on  the  6th  of  September  following,  he  tendered  the  further 
sum  of  $6,  which  the  defendant  took,  remarking  that  he  always 
made  it  a  rule  to  take  all  the  money  offered  him,  and,  on  the  12th 
of  the  same  September,  discharged  the  mortgage  of  Allen  to  Pin- 
gree and  Coe,  upon  the  records  of  the  county.  By  these  proceedings 
the  estate  of  the  plaintiff  was  relieved  from  one  of  the  outstanding 
incumbrances.  The  attachment,  ripened  into  a  title  by  sale  on  exe- 
cution, was  still  subsisting  and  unpaid.  The  plaintiff  neglecting  to 
redeem  that,  and  the  title  being  perfected  in  the  purchaser,  he  lost 
all  benefit  from  his  payment  of  the  mortgage  debt.  The  tender,  ef- 
fecting the  object  for  which  it  was  made,  ultimately  failed  to  be  of 


296  MISTAKE   OF    FACT. 

any  benefit,  by  reason  of  the  intervening  title  of  Shaw  &  Merrill  be- 
coming vested  in  them. 

The  plaintiff  brings  assumpsit  to  recover  the  money  tendered  on 
account  of  the  Pingree  and  Coe  mortgage. 

It  seems  the  plaintiff  was  in  fact  ignorant  of  the  attachment  in 
favor  of  Shaw  &  Merrill,  though  the  same  was  duly  recorded.  The 
defendant,  who,  as  their  attorney,  procured  it  to  be  made,  did  not 
disclose  its  existence  at  the  time  the  tender  was  made,  nor  since. 
As  the  attachment  was  recorded,  its  existence  was  ascertainable  by 
all  interested  to  inquire.  The  plaintiff  having  an  interest  to  ascer- 
tain the  facts,  omitted  to  examine  the  records  and  thus  learn  them. 
His  neglect  to  make  those  inquiries,  which  ordinary  prudence  would 
dictate,  cannot  give  him  any  new  rights  nor  enlarge  those  already 
existing.  The  defendant  did  not  disclose  the  existence  of  an  attach- 
ment. He  was  not  aware  of  the  plaintiff's  ignorance  of  that  fact. 
He  could  not  reasonably  anticipate  negligence  on  the  part  of  one 
so  sagacious  and  vigilant  as  the  plaintiff.  The  parties  were  dealing 
adversely.  He  could  not  assume  that  the  records  of  the  county  were 
unknown.  He  was  not  bound  to  inform  the  plaintiff*  of  their  con- 
tents, certainly  not,  when  no  inquiries  were  made  of  him  on  the 
subject. 

That  the  plaintiff  derived  no  ultimate  advantage  from  the  tender 
is  no  fault  of  the  defendant.  It  answered  the  purpose  for  which  it 
was  made.  It  effected  a  discharge  of  the  Pingree  and  Coe  mort- 
gage. It  was  made  for  the  purpose  of  discharging  that  mortgage. 
The  defendant  appropriated  the  tender  as  the  plaintiff  intended  he 
should.  The  mortgage  is  discharged.  The  plaintiff  cannot  place  the 
defendant  in  the  position  in  which  he  stood  before  its  discharge.  The 
plaintiff,  by  tendering  the  amount  due  to  Shaw  &  Merrill,  or  to 
their  assignee,  might  have  accomplished  his  object.  He  neglected 
it  and  must  suffer.   But  all  this  gives  him  no  right  of  action. 

Neither  can  the  plaintiff's  ignorance,  that  the  deed  of  Allen  to 
the  Whitings  was  not  recorded,  avail  him.  The  fact  was  easily  as- 
certainable, and  if  not  known,  it  was  his  neglect  that  he  did  not  as- 
certain it.  The  defendant  could  not  presume  that  the  plaintiff  did 
not  know  the  state  of  his  own  title.  He  was  not  bound  to  deduce  it 
for  him,  nor  to  point  out  any  defective  links  there  might  be  therein. 

The  parties  negotiated  ex  adverso.  The  defendant  made  no  mis- 
representations. The  i)laintiff  failed  to  tender  enough  to  remove  all 
existing  incumbrances.  He  mistook  the  facts,  and  neglecting  to 
guard  his  rights  with  his  usual  vigilance,  he  must  abide  the  result. 

Plaintiff  non-suit.^ 

'Accord,  Fcf?an  v.  Great  Northern  Ry.  Co.,  9  N.  Dak.  30  (iSgp),  where 
plaintiff,  an  employe  of  defendant,  was  by  the  rules  of  the  defendant,  bound 
to  know  the  facts  and  defendant  has,  subsequent  to  the  payment,  lost  a  right 
to  indemnity. 


EQUAL    FAULT.  297 

7.      EQUAL  FAULT. 

UNION  BANK  v.  BANK  OF  THE  UNITED  STATES. 

3  Mass.  74. — 1807. 

Action  for  money  had  and  received,  which  the  parties  submitted 
to  the  opinion  of  the  court,  upon  the  following  facts.  It  has  been 
the  custom  of  the  branch  of  the  United  States  Bank  in  Boston,  to 
receive  payment  for  checks  on  other  banks  in  Boston,  in  the  follow- 
ing manner:  There  are  two  correct  lists  of  each  kind  of  checks 
made  out,  one  of  which  remains  in  the  branch  bank,  and  the  other 
is  carried  with  the  checks  to  the  other  banks  by  the  messenger  of 
the  branch  bank ;  in  return  for  which  he  receives  of  the  tellers  of 
the  several  banks,  checks  on  the  branch  bank,  sufficient  for  payment, 
without  knowing  whether  the  checks  so  received  are  good  or  not ; 
these  checks  are  immediately  compared  with  the  list  that  accom- 
panies them,  by  the  teller  of  the  branch  bank,  and  then  delivered  to 
the  bookkeepers  for  examination,  to  see  if  they  are  good ;  and  if  they 
are  found  not  good,  they  are  immediately  returned  and  always  have 
been  received  without  hesitation. 

On  Monday,  August  5,  1805,  the  proceeds  of  the  exchanges  of 
the  several  banks  in  Boston  were  brought  to  the  counter  of  the 
branch  bank  at  the  same  time,  by  the  hands  of  the  branch  bank 
messengers,  in  several  parcels.  In  one  of  the  parcels  thus  brought, 
were  two  checks  drawn  by  Stephen  Rawson  on  the  branch  bank, 
for  $550  and  $300,  which  were  instantly  pronounced  to  be  bad,  and 
sent  to  the  Union  Bank,  from  which  they  were  supposed  to  have 
been  received,  though  in  fact  they  were  brought  from  the  Boston 
Bank.  The  teller  of  the  Union  Bank  received  them,  presuming  that 
they  had  been  sent  from  that  bank,  and  sent  their  amount  in  money. 
On  Tuesday,  the  6th,  they  were  again  sent  by  the  Union  Bank  to  the 
branch  bank,  in  part  of  the  payment  of  that  day,  and  were  returned 
and  paid  for  as  before.  On  Wednesday,  the  7th,  Rawson,  the  drawer 
of  the  checks  was  known  to  have  failed.  On  Thursday,  the  8th,  the 
teller  of  the  Union  Bank  first  discovered  that  these  checks  had  origi- 
nally been  sent  on  Monday,  from  the  Boston  Bank,  of  which  he  im- 
mediately gave  information  to  the  branch  bank.  On  Sunday,  August 
4th,  Rawson  embarked  in  a  vessel  for  Gibraltar,  and  sailed  the  next 
morning,  for  the  purpose  of  avoiding  his  creditors.  But  his  ab- 
sconding was  not  generally  known  until  the  Wednesday  following, 
on  which  day  the  property  in  his  store  in  Boston  was  attached  by 
his  creditors  which  property  exceeded  in  value  the  amount  of  the 
said  checks. 

If  upon  these  facts  it  should  be  the  opinion  of  the  court  that  the 
plaintiffs  have  a  right  to  recover  of  the  defendants  the  amount  of 
the  said  checks,  judgment  to  be  entered  for  $850;  if  otherwise,  the 
defendants  to  recover  their  costs. 


298  MISTAKE   OF    FACT. 

Parsons,  C.  J. — It  appears  from  the  case  that  on  the  5th  day  of 
August,  1805,  the  Union  Bank,  being  indebted  to  the  branch  bank, 
paid  their  debt  to  the  messenger  of  the  branch  bank,  who  had  sent 
him  to  the  Union  Bank  to  receive  it.  On  the  return  of  the  messenger 
to  the  branch  bank  with  the  payment  he  had  received,  the  officers 
of  that  bank  supposing,  by  mistake,  that  the  two  checks  drawn  by 
Rawson  were  received  in  payment  from  the  Union  Bank,  and  those 
checks  being  bad,  they  sent  them  to  the  Union  Bank,  who,  crediting 
the  affirmation  of  the  branch  bank,  received  the  checks,  and  paid 
the  branch  bank  for  them.  This  payment  was  made  by  mistake; 
and  the  Union  Bank  may  well  maintain  an  action  to  recover  back  the 
money,  unless  they  have  lost  their  right  of  action  by  their  own 
laches,  in  not  seasonably  detecting  the  mistake,  or  in  not  collecting 
the  money  due  from  Rawson  on  those  checks. 

In  considering  the  facts  in  the  case,  it  appears  that  the  messenger 
was  the  servant  of  the  branch  bank  only,  and  that  if  he  committed 
any  error  in  his  returns  of  payment  from  the  several  banks,  the 
Union  Bank  is  not  responsible  for  those  errors.  Whatever  delay 
there  was  in  that  bank,  in  not  collecting  the  checks,  arose  from  their 
confiding  in  the  mistaken  affirmation  of  the  branch  bank ;  and  al- 
though this  confidence  might  be  improper,  yet  the  branch  bank, 
whose  affirmation  was  the  occasion  of  it,  cannot  take  any  advantage 
of  it,  they  committing  the  first  fault. 

Let  judgment  be  entered  for  the  plaintiffs,  according  to  the  agree- 
ment of  the  parties. 

In  Koontz  v.  Central  National  Bank,  51  Mo.  275  (1873),  the  facts  were: 
Mrs.  Koontz  and  Mrs.  Simpson  were  each  in  the  millinery  business  at  Boone- 
ville.  Both  of  them  were  customers  of  C.  H.  Tuttle  of  St.  Louis,  who  was  in 
•the  habit,  from  time  to  time,  of  drawing  drafts  on  each  of  them  for  amounts 
due  on  their  purchases,  which  drafts  were  sent  to  the  Second  National  Bank 
of  St.  Louis  for  collection,  and  were  collected  and  remitted.  On  the  7th  day 
of  July,  1870,  Tuttle  drew  the  draft  out  of  which  this  controversy  arose,  on 
Mrs.  Simpson  for  $100.  The  collecting  officer  of  defendant  by  inadvertence  and 
mistake,  presented  it  to  Mrs.  Koontz  instead  of  Mrs.  Simpson,  and  Mrs. 
Koontz,  under  the  impression  at  the  time  that  she  was  indebted  to  Tuttle  and 
that  the  draft  was  drawn  upon  her,  paid  the  money  and  took  up  the  draft. 
On  the  same  day,  defendant  remitted  the  money  to  the  Second  National  Bank, 
stating  that  the  collection  was  on  account  of  Mrs.  Koontz.  At  this  time,  Mrs. 
Koontz  and  Airs.  Simpson  were  both  solvent.  No  notice  was  given  to  the 
defendant  of  the  error  until  the  1st  of  December,  1870,  being  after  the  de- 
fendant had  remitted  the  money  to  Tuttle,  and  after  Mrs.  Simpson  had  be- 
come insolvent.  The  conclusion  of  the  court  is  that  "it  is  apparent  that  the 
parties  acted  under  a  mistake  of  fact,  and  that  both  were  mutually  in  error. 
and  if,  in  consequence  of  such  mutual  mistake,  one  party  has  received  the 
property  of  the  other,  he  must  refund;  and  this  without  reference  to  vigilance 
or  negligence.  As  the  draft  was  wrongfully  presented  to  the  plaintifif,  and  it 
was  paid  by  reason  of  a  mutual  mistake,  I  think  that  she  is  entitled  to  re- 
cover, and  that  the  judgment  of  the  court  below  should  be  affirmed." 


y 


EQUAL    FAULT.  299 

DEVINE  V.  EDWARDS. 

87  III.   177.— 1877. 

Mr.  Justice  Dickey. — This  was  an  action  broiiglit  by  Edwards 
against  Devine,  to  recover  the  price  of  milk  which  had,  before  that 
time,  been  sold  to  appellant,  and  from  time  to  time  delivered.  De- 
fendant, in  the  circuit  court,  pleaded  the  general  issue,  and  pleas  of 
set-off,  and  on  the  trial  offered  evidence  tending  to  prove  that  less 
milk  had  been  actually  delivered  than  was  charged  for,  and  less  than 
he  supposed  at  the  time  of  receiving  and  paying  for  the  same.  Ap- 
pellant, it  seems,  was  a  dealer  in  milk  in  the  city  of  Chicago,  and 
plaintiff  (with  his  brother,  now  deceased),  for  a  series  of  months, 
from  time  to  time,  shipped  from  the  country  milk  in  cans,  supposed 
to  contain  eight  gallons  each.  Upon  that  hypothesis  the  account 
of  the  vendor  was  rendered  from  time  to  time,  and  payment  made 
by  the  vendee  for  all  milk  received  up  to  the  ist  of  March,  1875, 
and  for  a  part  of  the  milk  delivered  on  and  after  that  day  the  appel- 
lant refused  to  pay,  claiming  a  credit  for  a  large  amount  of  money 
on  account  of  money  overpaid  prior  to  that  date,  as  he  claims,  from 
time  to  time,  by  mistake,  in  supposing  that  the  cans  each  contained 
eight  gallons,  when,  in  fact,  as  he  alleges,  a  part  of  them  were  short 
and  contained  less  than  eight  gallons.  The  testimony  is  voluminous 
and  contradictory,  and  it  seems  to  us  that  the  weight  of  the  evidence 
found  in  the  record  is  in  favor  of  the  position  of  appellant.  The 
verdict  was  for  appellee,  for  the  sum  of  $989.10,  being  very  near 
the  full  amount  claimed  by  him.  After  overruling  a  motion  for  a 
new  trial,  judgment  was  rendered  against  appellant  upon  the  verdict. 

Many  points  are  presented  by  appellant  as  grounds  for  reversing 
this  judgment.  It  is  not  necessary  that  we  should  consider  more 
than  one.  The  court,  among  other  things,  instructed  the  jury,  at  the 
request  of  appellee,  "that  if  they  believe,  from  the  evidence,  that  be- 
fore or  during  the  time  he  received  or  was  receiving  the  milk  of  the 
plaintiff,  for  which  he  now  claims  his  set-off  for  shortage,  the  de- 
fendant *  *  *  had  such  notice  thereof,  that  by  the  exercise  of 
ordinary  prudence  and  diligence  he  would  have  known  that  plain- 
tiff's cans  were  not  up  to  the  standard  of  eight  gallons,  and  that 
plaintiff  had  no  knowledge  of  any  such  shortage,  and  that  defend- 
ant, with  such  notice  and  means  of  knowledge,  paid  the  plaintiff 
in  full  for  each  month's  milk,  except  the  month  of  March,  1875, 
without  any  claim  for  shortage,  then  he  cannot  set  off  in  this  action 
any  sum  for  such  shortage  "  *  *  accruing  since  such  *  "  * 
notice,  except  such  shortage  as  mav  have  accrued  in  that  month  of 
March." 

We  cannot  give  our  sanction  to  the  rule  announced  in  that  in- 
struction. There  is  evidence  tending  to  prove,  that  as  early  as  1870, 
and  upon  divers  occasions  after  that,  the  attention  of  appellant  had 
been  called  to  the  question  whether  appellee  was  or  was  not  using 


300  MISTAKE   OF    FACT. 

cans  which  were  short  in  capacity,  and  that  his  suspicions  had  been 
aroused  on  that  subject,  and  therefore  had  such  notice  as  put  him 
upon  inquiry,  and  such  as  would  have  prompted  a  man  of  ordinary 
prudence  to  exercise  such  vigilance  as  would,  if  exercised,  have 
discovered  the  deficit  in  quantity  before  the  several  payments  were 
made,  and  it  is  insisted  by  appellee,  that  having  omitted  such  vigi- 
lance, appellant  cannot  complain.  This  is  not  the  law.  The  contract 
under  which  the  milk  was  sold  was  for  a  given  price  per  gallon. 
It  was  the  duty  of  the  appellee  to  see  to  it  that  his  cans  should  hold 
the  quantity  which  he  professed  that  they  held.  It  does  not  lie  in 
his  mouth  to  complain  that  appellant  did  not  watch  him  with  the  care 
which  the  circumstances  seemed  to  demand.  If,  in  truth  and  in  fact, 
by  the  mistake  of  appellant  and  that  of  appellee,  the  amount  of  the 
milk  was  short,  and  appellee  received  more  money  on  that  account 
than  he  was  entitled  to,  he  must  account  for  the  same,  even  though 
the  mistake  resulted  from  negligence  on  the  part  of  appellant  as  well 
as  on  the  part  of  appellee.  The  real  question  is  as  to  the  fact  of  the 
alleged  shortage.  If  that  existed,  the  appellant  is  entitled  to  have 
the  wrong  corrected  by  way  of  set-off.  For  this  error  the  judgment 
must  be  reversed  and  the  cause  remanded  for  a  new  trial. 

Judgment  reversed. 
Mr.  Justice  Craig — I  do  not  concur  with  a  majority  of  the  court 
in  the  decision  of  this  case.    The  question  of  fact,  in  my  judgment, 
was  fairly  submitted  to  the  jury,  and  the  verdict  should  be  held  con- 
clusive. 


8.      NECESSITY   OF   NOTICE  TO,   OR   DEMAND   UPON,  DEFENDANT. 

SHARKEY  V.  MANSFIELD. 

90  N.  Y.  227. — 1882. 

This  action  was  brought  to  recover  a  balance  alleged  to  be  due 
for  work  and  material  in  building  a  stone  pier  in  the  Gowanus  canal. 

Plaintiff  claimed  that  the  work,  save  some  extra  work,  was  to  be 
done  for  a'gross  sum,  and  that  no  price  was  fixed  for  the  extra  work ; 
defendant  claimed  the  agreement  to  be  that  the  work  should  be  paid 
for  at  a  specified  price  per  cubic  yard.  He  set  up  as  a  counter-claim 
an  over-payment  made  through  mistake  on  his  part  as  to  the  quantity 
of  the  work  done,  which  mistake  was  not  discovered  until  a  meas- 
urement was  made  after  the  suit  was  commenced,  which  was  in 
1878.  Plaintiff  proved  that  his  bookkeeper  presented  to  defendant 
a  bill  for  the  work  as  claimed  by  him  in  1872.  and  that  thereafter 
defendant  made  payments  thereon. 

Finch,  J. — This  is  not  a  case  of  money  paid  under  a  mutual  mis- 
take, where  the  action  of  each  party  was  equally  innocent.  The  mis- 
take was  that  of  the  party  who  paid,  and  not  at  all  that  of  the  one 


NOTICE   OR   DEMAND.  3OI 

who  received  the  amount  in  dispute.  The  plaintiff  was  employed 
by  the  defendant  to  build  a  stone  pier  in  the  Gowanus  canal.  The 
precise  terms  of  the  contract,  and  the  amount  due  for  construction 
were  sharply  litigated  on  the  trial;  but  the  verdict  of  the  jury  es- 
tablishes that  there  was  an  over-payment  mistakenly  made  by  the 
defendant.  His  right  to  recover  {jack  is  resisted,  mainly  upon  the 
ground  that  notice  was  not  given  and  demand  made  of  the  over- 
payment, before  setting  up  the  counter-claim.  Without  stopping  to 
consider  whether  the  same  rule  applies  to  a  defendant  pleading  an 
over-payment  by  way  of  counter-claim,  as  that  which  governs  a 
plaintiff  suing  for  the  same  cause,  and  assuming  the  law  to  be  identi- 
cal in  both  cases,  we  are  still  of  opinion  that  a  demand  was  not  a 
condition  precedent  to  the  defendant's  right  of  action.  Two  cases 
in  this  court  are  relied  upon  by  the  appellant.  The  Mayor  v.  Erben, 
3  Abb.  App.  Dec.  255  ;  South  wick  v.  The  First  National  Bank  of 
Memphis,  84  N.  Y.  420.  In  the  first  of  these  cases  no  mistake  was 
established,  and  that  fact  decided  the  case.  The  court  added,  "where 
money  is  paid  under  mutual  mistake,"  demand,  or  at  least  notice 
of  the  error,  must  precede  a  right  of  recovery.  In  the  later  case,  the 
mistake  was  mutual,  and  stress  was  laid  upon  the  fact  that  the  de- 
fendant "lawfully  and  innocently  received  the  draft  and  the  money 
thereon."  The  ground  of  these  decisions  is  quite  obvious.  Where 
the  mistake  is  mutual,  both  parties  are  innocent,  and  neither  is  in 
the  wrong.  The  party  honestly  receiving  the  money  through  a  com- 
mon mistake  owes  no  duty  to  return  it  until  at  least  informed  of  the 
error.  It  is  just  that  he  should  have  an  opportunity  to  correct  the 
mistake,  innocently  committed  on  both  sides,  before  being  subjected 
to  the  risks  and  expenses  of  a  litigation.  It  was  said  in  Abbott  v. 
Draper,  4  Den.  53,  that  "when  a  man  has  paid  money  as  due  upon 
contract  to  another,  and  there  is  no  mistake,  and  no  fraud  or  other 
wrong  on  the  part  of  the  receiver,  there  is  no  principle  upon  which 
it  can  be  recovered  back  until  after  demand  has  been  made."  While 
this  language  is  not  accurate  as  to  a  mistake  on  the  part  of  the  re- 
ceiver, if  that  was  the  meaning  intended,  the  doctrine  is  clearly 
recognized  that  where  the  receiver  is  guilty  of  fraud  or  other  wrong 
in  taking  the  money,  he  is  not  entitled  to  notice.  The  necessity  of  a 
demand  does  not,  therefore,  exist  in  a  case  where  the  party  receiv- 
ing the  money,  instead  of  acting  innocently  and  under  an  honest 
mistake,  knows  the  whole  truth,  and  consciously  receives  what  does 
not  belong  to  him,  taking  advantage  of  the  mistike  or  oversight  of 
the  other  party,  and  claiming  to  hold  the  money  thus  obtained  as  his 
own.  In  such  case  he  cannot  assume  the  attitude  of  bailee  or  trustee, 
for  he  holds  the  money  as  his  own,  and  his  duty  to  return  it  arises 
at  the  instant  of  the  wrongful  receipt  of  the  overpayment.  He  is 
already  in  the  wrong,  and  it  needs  no  request  to  put  him  in  that 
position.  The  Utica  Bank  v.  Van  Gieson,  18  Johns.  485 ;  Andrews 
V.  Artisans'  Bank,  26  N.  Y.  299;  Dill  v.  Wareham,  7  Met.  447; 
Southwick  V.  First  National  Bank  of  Memphis,  84  N.  Y.  430. 

This  case  is  of  that  character.   The  receiver  was  not  innocent.   If 


302  MISTAKE   OF    FACT. 

he  did  not  perpetrate  a  fraud,  at  least  he  committed  a  wrong.  He 
knew  all  the  facts  and  must  be  assumed  to  have  knovv^n  the  law. 
He  went  to  trial  not  admitting  a  mistake,  but  insisting  that  there  was 
none.  He  charged  a  price  beyond  that  to  which  he  was  entitled,  or 
for  quantities  which  were  exaggerated,  and  obtained  the  money 
through  the  inadvertence  and  mistake  of  his  debtor,  who  had  not 
measured  the  work.  He  did  not  come  rightfully  by  the  excess.  He 
took  it  as  his  own  money,  conscious  of  all  the  facts,  and  not  only 
claimed  to  hold  it  as  such,  but  sued  to  recover  more.  The  case  is 
not  one  in  which  he  owed  no  duty  until  apprised  of  his  mistake,  for 
he  made  none.  He  took  what  was  not  his,  knowing  all  the  facts, 
and  at  the  moment  of  its  receipt  it  was  his  duty  to  return  it.  The 
action  for  money  had  and  received  could  be  at  once  maintained. 

The  appellant  further  relies  upon  the  facts  of  the  presentation  of 
his  bill  and  a  payment  thereafter,  made  by  the  defendant,  and  also 
upon  the  lapse  of  time  during  which  the  bill  remained  unchallenged. 
These  circumstances  he  insists  amounted  to  an  admission  of  the  cor- 
rectness of  the  bill.  They  tended  to  that  result,  but  were  not  con- 
clusive. They  were  met  by  the  defendant's  evidence  of  mistake  and 
his  explanation  consistently  therewith.  The  facts  relied  on  and  the 
explanation  given  were  submitted  to  the  jury  and  they  have  de- 
termined the  question.  We  discover  no  just  ground  for  reversing 
the  recovery. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur,  except  Tracy,  J.,  taking  no  part. 

Judgment  affirmed.^ 

^In  Gillett  v.  Brewster,  62  Vt.  312,  313  (1890),  the  court  says:  "That  the 
payment  was  expressed  to  be  'on  account,'  and  not  in  final  settlement,  can 
make  no  difference  with  the  rights  of  the  parties,  but  serves  only  as  evidence 
of  the  mistake  or  negligence  of  the  party  making  the  overpayment,  in  sup- 
posing that  he  was  only  paying  on  account,  when  in  reality  he  was  paying  a 
larger  sum  than  the  whole  amount  actually  due.  Nor  can  it  affect  their 
rights  that  the  amount  of  such  payment  was,  at  the  time  of  suit  brought,  un- 
ascertained. No  formal  demand  or  of  any  specific  sum  is  necessary.  'Whatever 
language  gives  him  (the  defendant)  notice  of  the  overpayment,  and  calls 
upon  him  to  rectify  the  mistake,  is  sufficient.'  'The  money  all  the  time  is  the 
property  of  the  party  making  the  overpayment,  but  having  come  into  the 
possession  of  the  other  party  without  his  fault  or  knowledge,  he  is  entitled 
to  be  notified  of  the  fact  that  he  has  the  money  in  his  possession,  and  to  be 
called  upon  to  rectify  the  mistake,  before  he  is  subject  to  a  suit  for  the  re- 
covery.'   Bishop  V.  Brown,  supra  [51  Vt.  330]." 

Recovery  of  Inteuest  on  Money  Paid  Under  iMistake  of  Fact. — "The 
court  included  in  the  amount  for  which  judgment  was  directed  the  interest 
on  each  overpayment  from  the  time  when  such  overpayment  was  made.  This, 
the  plaintififs  claim,  was  incorrect,  and  that  interest  was  only  allowable  from 
the  time  of  the  service  of  the  answer,  which,  for  the  purpose  of  interest, 
might  be  deemed  the  date  of  the  demand.  This  question  the  plaintiffs  are  in 
a  position  to  raise  under  their  exception  to  the  conclusion  of  law  that  the 
defendant  was  entitled  to  judgment  in  the  sum  of  $302.13.  There  was  here  a 
mutual  mistake,  and  no  fraud  can  be  imputed  to  either  party.  In  such  a  case, 
interest  should  not  be  allowed  except  from  the  time  when  the  demand  was 
made.    King  v.  Diehl,  9  Serg.  &  R.  409;  Ashurst  v.  Field,  28  N.  J.  Eq.  315; 


y 


NOTICE   OR   DEMAND.  -^X  3°3 

Gray,  J.,  in  LEATHER  MANUFACTURERS'  BANK  v.  MER- 
CHANTS' BANK. 

128  U.  S.  26,  35-— 1888. 

Whenever  money  is  paid  upon  the  representation  of  the  receiver 
that  he  has  either  a  certain  title  in  property  transferred  in  considera- 
tion of  the  payment,  or  a  certain  authority  to  receive  the  money  paid, 
when  in  fact  he  has  no  such  title  or  authority,  then,  although  there  be 
no  fraud  or  intentional  misrepresentation  on  his  part,  yet  there  is  no 
consideration  for  the  payment,  and  the  money  remains,  in  equity 
and  g-ood  conscience,  the  property  of  the  payer,  and  may  be  recov- 
ered back  by  him,  without  any  previous  demand,  as  money  had  and 
received  to  his  use.  His  right  of  action  accrues,  and  the  statute  of 
limitations  begins  to  run,  immediately  upon  the  payment. 

Thus,  in  the  early  case  of  Bree  v.  Holbech,  2  Doug.  654,  where  an 
administrator  received  the  amount  of  the  mortgage  money  upon  his 
assignment  of  a  mortgage  purporting  to  be  made  to  the  deceased, 
but  in  fact  a  forgery,  of  which  both  parties  were  ignorant,  it  was 
held  by  Lord  Mansfield  and  the  court  of  the  king's  bench  that  the 
right  of  action  to  recover  back  from  the  administrator  the  money 
so  paid  was  barred  by  the  statute  of  limitations  in  six  years  from 
the  time  of  the  payment.  So,  in  Utica  Bank  v.  Van  Gieson,  18  Johns. 
485,  where  a  promissory  note  payable  at  the  Bank  of  Geneva  was 
left  by  the  indorsers  with  the  Utica  Bank  for  collection,  and  sent 
by  it  to  the  Bank  of  Geneva  for  that  purpose,  and  the  amount  was 
afterward  paid  by  the  Utica  Bank  to  the  indorsers  upon  the  mistaken 
supposition  that  it  had  been  paid  to  the  Bank  of  Geneva  by  the 
maker,  when  in  fact  it  had  not,  and  it  was  not  pretended  that  the 
Utica  Bank  had  been  guilty  of  any  negligence,  the  supreme  court 
of  New  York  held  that  notice  of  the  fact  that  the  note  had  not  been 
paid  by  the  maker  was  unnecessary  to  maintain  an  action  by  the 
Utica  Bank  to  recover  back  the  money  from  the  indorsers ;  and 
Chief  Justice  Spencer  said :  "The  plaintiffs'  ground  of  action,  then, 
is  that  the  money  was  paid  to  the  defendants  under  a  mistake  of 
facts.  The  defendants  are  not  bailees  or  trustees  of  the  money  thus 
received.  It  was  paid  and  received,  as  their  money,  and  not  as  money 
to  be  kept  for  the  plaintififs.  In  such  a  case,  it  was  not  necessary  to 
make  a  demand  prior  to  the  suit ;  for  a  request  was  not  essential  to 
the  maintenance  of  the  action :  nor  did  the  defendants'  duty  to  re- 
turn the  money  erroneously  paid  arise  upon  request." 

In  Bank  of  United  States  v.  Daniel,  the  acceptor  and  indorsers, 
upon  taking  up  a  bill  of  exchange  for  $10,000,  which  had  been  duly 
protested  for  non-payment,  paid  ten  per  cent,  as  damages,  under  a 
mistake  as  to  the  local  law  upon  the  subject.  Upon  a  bill  in  equity  to 

I  Amer.  Lead.  Cas.   (2d  Ed.)   528;  11  Amer.  &  Eng.  Enc.  Law  398."— Leach 
v.  Vining,  18  N.  Y.  Supp.  822,  824  (Supreme  Ct.  Gen.  Term  1892). 


304  MISTAKE   OF    FACT. 

.relieve  against  the  mistake  and  recover  back  the  money,  this  court, 
while  holding  that  such  a  mistake  gave  no  ground  for  relief,  also 
held  that,  if  it  did,  the  statute  of  limitations  ran,  in  equity  as  well  as 
at  law,  from  the  tirne  of  the  payment,  saying:  "If  the  thousand  dol- 
lars claimed  as  damages  were  paid  to  the  bank  at  the  time  the  bill  of 
exchange  was  taken  up,  then  the  cause  of  action  to  recover  the  money 
(had  it  been  well  founded)  accrued  at  the  time  the  mistaken  payment 
was  made,  which  could  have  been  rectified  in  equity,  or  the  money  re- 
covered back  by  a  suit  at  law."  12  Pet.  32,  56,  In  Dill  v.  Ware- 
ham,  7  Met.  438,  the  Supreme  Judicial  Court  of  Massachusetts, 
speaking  by  Chief  Justice  Shaw,  held  that  a  party  receiving  money 
in  advance,  on  a  contract  which  he  had  no  authority  to  make  and 
afterward  refused  to  fulfil,  was  liable  to  the  other  party  in  an  action 
for  money  had  and  received,  without  averment  or  proof  of  any 
previous  demand.  And  in  Sturgis  v.  Preston,  134  Mass.  372,  where 
land  was  sold  for  a  certain  sum  by  the  square  foot,  and  the  purchaser, 
relying  on  the  vendor's  statement  of  the  number  of  feet,  made  pay- 
ment accordingly,  and  afterward  discovered  that  the  number  had 
been  overstated,  but  disclaimed  all  charge  of  fraud  or  fraudulent 
concealment  on  the  part  of  the  vendor,  it  was  held  that  the  right  of 
action  to  recover  back  the  excess  paid  accrued  immediately,  without 
any  previous  demand,  and  was  barred  by  the  statute  of  limitations 
in  six  years  from  the  date  of  the  payment.  See  also  Earle  v.  Bick- 
ford,  6  Allen  549 ;  Blethen  v.  Lovering,  58  Maine  437. 

The  judgment  of  the  circuit  court  in  the  present  case  appears  to 
have  been  based  upon  the  decision  in  Merchants'  Bank  v.  First  Na- 
tional Bank,  4  Hughes  i,  which  proceeds  upon  grounds  inconsistent 
with  the  principles  and  authorities  above  stated,  and  cites  no  case 
except  the  very  peculiar  one  of  Cowper  v.  Godmond,  9  Bing.  748 ; 
s.  c.  3  Moore  &  Scott  219,  in  which  the  right  of  action  to  recover 
back  money  paid  for  a  grant  of  an  annuity,  the  memorial  of  which 
was  defective,  was  held  not  to  accrue  until  the  grantor  elected  to 
avoid  it  on  that  ground,  the  annuity  apparently  being  considered  as 
not  absolutely  void,  but  as  voidable  only  at  the  election  of  the  grantor. 
See  Churchill  v.  Bertrand,  3  O.  B.  568;  s.  c.  2  Gale  &  Dav.  548. 
Although  some  of  the  opinions  of  the  court  of  appeals  of  New 
York,  in  the  cases  cited  at  the  bar,  contain  dicta  which,  taken  by 
themselves,  and  without  regard  to  the  facts  before  the  court,  might 
seem  to  support  the  "position  of  the  defendant  in  error,  yet  the  judg- 
ments in  those  cases,  upon  full  examination,  appear  to  be  quite  in 
accord  with  the  views  which  we  have  expressed.  The  cases  of 
Thompson  v.  Bank  of  British  North  America,  82  N.  Y.  i,  and 
Bank  of  British  North  America  v.  Merchants'  Bank,  91  N.  Y.  106, 
were  actions  by  depositors  against  their  respective  bankers,  and  were 
therefore  held  not  to  be  liarred  until  six  years  after  demand.  In 
South  wick  v.  First  National  Bank,  84  N.  Y.  420,  the  decision  was 
that  there  was  no  such  mistake  as  entitled  the  party  paying  the 
money  to  reclaim  it ;  and  in  Sharkey  v.  Mansfield.  90  N.  Y.  227,  it 
was  adjudged  that  money  paid  by  mistake,  but  received  with  full 


NOTICE   OR   DEMAND.  305 

knowledge  of  all  the  facts,  might  be  recovered  back  without  previous 
demand ;  and  what  was  said  in  either  opinion  as  to  the  necessity  of  a 
demand  where  both  parties  act  under  a  mistake  was  obiter  dictum. 

Two  other  cases  in  that  court  were  decided  together,  and  on  the 
same  day  as  Bank  of  British  North  America  v.  Merchants'  Bank, 
above  cited.  In  one  of  them,  the  defendants,  wdio  had  innocently  sold 
to  the  plaintiffs  a  forged  note  as  genuine,  and  upon  being  informed 
of  the  forgery  and  requested  to  pay  back  the  purchase  money,  had  ex- 
pressly promised  to  do  so  if  the  plaintiffs  should  be  obliged  to  pay  a 
third  person  to  whom  they  had  in  turn  sold  the  note,  were  there- 
fore held  not  to  be  discharged  from  their  liability  to  refund  by  the 
plaintiffs'  having  awaited  the  determination  of  a  suit  by  that  person 
against  themselves,  before  returning  the  note  to  the  defendants. 
Frank  v.  Lanier,  91  N.  Y.  112.  In  the  other  case,  a  bank,  which  had 
paid  a  check  upon  a  forged  indorsement,  supposed  by  both  parties 
to  be  genuine,  was  held  entitled  to  recover  back  the  money,  with  in- 
terest from  the  time  of  payment,  necessarily  implying  that  the  right 
of  action  accrued  at  that  time.  Corn  Exchange  Bank  v.  Nassau 
Bank,  91  N.  Y.  74. 

In  the  case  at  bar,  as  in  the  case  last  cited,  the  plaintiff's  right 
of  action  did  not  depend  upon  any  express  promise  by  the  defend- 
ant after  the  discovery  of  the  mistake,  or  upon  any  demand  by  the 
plaintiff  upon  the  defendant,  or  by  the  depositor  or  any  other  per- 
son upon  the  plaintiff ;  but  it  was  to  recover  back  the  money,  as  paid 
without  consideration,  and  had  and  received  by  the  defendant  to 
the  plaintiff's  use.  That  right  accrued  at  the  date  of  the  payment, 
and  was  barred  by  the  statute  of  limitations  in  six  years  from  that 
date.  For  this  reason,  without  considering  any  other  ground  of  de- 
fense, the  order  must  be 

Judgment  reversed,  and  case  remanded  to  circuit  court,  with  di- 
rections to  set  aside  the  verdict  and  order  a  new  trial.^ 

'In  Freeman  v.  Jeffries,  L.  R.  4  Exch.  189,  200  (1869),  Bramwell,  B. 
says :  "Put  the  claim  of  this  action,  which  is  in  the  technical  form  of  an  ac- 
tion for  money  had  and  received,  in  a  rational  way,  and  it  amounts  to  this. 
The  plaintiff  says,  'I,  in  the  belief  that  a  certain  valuation  had  been  made, 
paid  certain  moneys  to  you  ;  I  have  since  found  that  the  valuation  was  not 
made,  I  therefore  say  there  is  a  duty  on  your  part  to  repay  me.'  Would  the 
duty  of  repayment  arise  until  this  notice  was  given?  I  apprehend  not;  for 
at  what  other  time  could  it  have  arisen?  Not  at  the  moment  when  the 
money  was  paid ;  for  it  was  paid  with  the  intention  that  the  defendant  should 
keep  it.  Was  it,  then,  at  the  moment  when  the  mistake  was  discovered?  This 
would  be  most  unjust;  the  mistake  was  the  plaintiff's,  and  the  discovery  is 
the  plaintiff's,  and  the  defendant  may  still  think  that  everything  is  right, 
and  that  no  mistake  at  all  was  committed.  Therefore  until  notice,  no  duty 
would  arise,  and  therefore  no  cause  of  action." 

Woodruff's  Cases — 20 


306  MISTAKE   OF    FACT, 

ii.     Particular  Applications. 

I.      GRATUITY  CONFERRED  UNDER  MISTAKE. 

URIE  V.  JOHNSTON. 
3  P.  &  W.  (Pa.)  212.— 1831. 

Sampson  Johnston,  the  plaintiff  below,  brought  indebitatus  as- 
sumpsit for  work,  labor  and  services  against  Urie,  and  recovered  a 
verdict  for  $370. 

Kennedy,  J. — The  defendant  in  error  is  a  negro,  and  the  son  of  a 
negro  woman,  who  was  born  and  regularly  registered  a  Pennsylvania 
servant  until  the  age  of  twenty-eight  years  ;  and  she  was  the  daughter 
of  a  regularly  registered  Pennsylvania  slave  for  life.  The  defendant 
in  error  was  born  on  the  8th  of  July,  1800,  during  the  servitude  of 
his  mother,  and  registered  by  her  master  in  eight  days  after  his  birth. 
He  was  held  and  considered  as  a  servant  under  the  abolition  act  of 
the  1st  of  ]\Iarch,  1780,  and  as  such  had  been  transferred  and  sold, 
two  or  three  times,  and  in  the  last  instance,  on  the  i6th  of  September, 
1816,  to  the  plaintiff  in  error,  for  the  price  of  $550.  He  was  held  by 
the  plaintiff  in  error,  as  a  servant,  without  any  opposition,  or  doubt, 
or  question  being  made  or  entertained  of  his  being  legitimately  so, 
until  the  27th  of  July,  1829,  when  he  was  discharged  from  the  service 
of  the  plaintiff  in  error  upon  a  writ  of  habeas  corpus.  This  was  short- 
ly after  the  supreme  court  in  this  state  had  decided  in  the  case  of 
Miller  v.  Dwilling^  that  the  child  of  one  bound  to  serve  to  the  age  of 
twenty-eight  years  was  not  bound  to  servitude  for  the  same  period, 
but  was  absolutely  free.  Until  this  decision  a  directly  opposite  opin- 
ion was  entertained  and  prevailed  not  only  with  a  great  portion  of 
the  community,  but  with  many  of  the  most  distinguished  lawyers  of 
the  state.  In  confirmation  of  this  I  refer  to  the  case  of  Stiles  v.  Nelly, 
10  Serg.  &  Rawle  366.  Although  it  appeared  upon  the  face  of  the 
record,  in  the  statement  of  that  case,  that  Nelly  was  the  child  of  one 
bound  under  the  act  of  the  ist  of  March  to  servitude  until  twenty- 
eight  only,  it  never  occurred  to  her  counsel  to  claim  her  freedom  upon 
that  ground,  nor  yet  to  any  one  of  the  learned  judges  of  the  court, 
whose  duty  it  certainly  was,  if  not  in  favorem  vitae,  in  favor  of  lib- 
erty— a  right  much  more  highly  estimated  by  many — to  have  pro- 
nounced her  free  for  that  cause  if  they  had  thought  so,  although  it 
was  not  mentioned  or  contended  for  by  her  counsel.  I  have  no  doubt 
she  would  have  been  so  declared  at  the  time  had  the  same  opinion 
been  entertained  by  the  judges  of  the  supreme  court  then  as  at  the 
time  of  the  decision  in  Miller  v.  Dwilling.  Indeed,  I  know  that  the 
minds  of  some  of  our  most  distinguished  jurists  in  the  state  vacillated 
on  this  question.   And  although  the  language  of  the  act  of  assembly 

'  Not  reported. 


GRATUITY    CONFERRED    UNDER    MISTAKE.  307 

was  at  all  times  the  same,  and  underwent  no  change,  yet  I  think  it 
may  be  said  that  it  was  doubtful  what  its  construction  would  be  until 
it  was  judicially  declared.  In  short,  that  it  was  doubtful  what  the 
law  was  on  this  point  until  this  court  determined  it. 

Considering  this  state  of  uncertainty  as  to  what  the  law  was  when 
the  plaintiff  in  error  bought  the  defendant  as  a  servant  until  twenty- 
eight,  at  the  extravagant  price  of  $550,  which  he  paid  for  him,  it  can- 
not be  presumed  that  the  plaintiff  doubted  that  the  defendant  in  error 
was  a  servant  until  twenty-eight.  It  must  be  presumed  that  the  de- 
fendant in  error  knew  his  genealogy,  at  least  as  well  if  not  better  than 
the  plaintiff  in  error,  and  even  after  he  attained  the  age  of  twenty- 
one  he  continued  to  live  with  the  plaintiff  in  error  as  his  servant, 
without  any  the  least  objection,  until  he  was  twenty-seven  years  of 
age.  During  all  this  time,  at  least,  it  may  be  said  that  the  defendant 
in  error  was  as  much  bound  to  know  his  condition  and  rights  as  the 
plaintiff.  He  might  certainly  waive  or  forbear  to  assert  them  as  long 
as  he  pleased.  It  does  not  appear  that  the  plaintiff  ever  endeavored 
or  attempted  to  use  any  unfair  means  in  order  to  prevent  the  defend- 
ant in  error  from  claiming  and  obtaining  his  liberty  if  he  chose.  The 
counsel  for  the  defendant  in  error  has  contended  that  his  claim  may 
be  likened  to  the  case  of  money  paid  through  mistake,  wdiich  may  be 
recovered  back,  as  he  alleges  ;  that  the  defendant  in  error  performed 
the  services  for  the  plaintiff'  as  his  servant  under  a  mistake  of  his  real 
condition,  not  knowing  that  he  was  a  freeman,  and  that  the  plaintiff 
in  error,  being  greatly  benefited  by  his  services,  is  bound  by  the  ties 
of  natural  justice  and  equity  to  remunerate  him.  It  is  true  that  as- 
sumpsit will  lie  for  money  had  and  received  in  all  cases  where  by 
the  ties  of  natural  justice  and  equity  the  defendant  ought  to  refund 
the  money  paid  to  him,  except  when  he  may  with  a,  good  conscience 
receive  it,  and  there  was  no  deceit  or  unfair  practice  in  obtaining  it, 
in  which  case,  although  the  money  could  not  be  recovered  by  law,  the 
action  will  not  lie  to  enable  the  party  who  paid  it  voluntarily  to  re- 
cover it  back  again.  Morris  v.  Turin,  i  Dall.  148 ;  Bogart  v.  Nevins, 
6  Serg.  &  Rawle  369;  Irvine  v.  Hanlin,  10  Serg.  &  Rawle  219.  Let 
the  matter,  then,  be  tested  by  this  rule,  and  the  question  wall  be,  did 
the  plaintiff  in  error,  under  the  circumstances  of  this  case,  receive  the 
labor  and  services  of  the  defendant  in  error  with  a  good  conscience, 
in  payment  or  satisfaction  of  the  $550  which  he  had  advanced  for 
him?  It  must  be  admitted  that  the  plaintiff  in  error  was  entitled  to 
have  either  the  services  of  the  defendant  in  error  or  to  have  his 
money  repaid ;  that  he  had  a  just  and  conscientious  claim  to  the  one 
or  the  other ;  if  so,  surely  he  might  very  fairly  and  honestly  receive 
his  money  or  the  services  in  satisfaction  of  it  from  the  defendant  in 
error,  or  any  other  who  was  willing  to  pay  or  perform  service  for  it. 
In  such  a  case  it  is  not  sufficient,  as  has  been  contended,  to  affect 
the  conscience  of  the  plaintiff  in  error  that  the  services,  though  per- 
formed willingly  by  the  defendant  in  error,  were  performed  under 
mistake ;  because,  in  the  case  of  a  sheriff  paying,  through  mistake, 
money  made  by  him  to  a  plaintiff  in  a  junior  execution  when  he 


308  MISTAKE   OF    FACT. 

ought  to  have  paid  it  on  a  senior,  he  cannot  recover  it  back,  although 
by  doing  so  he  made  himself  liable  to  the  plaintiff  in  the  senior  exe- 
cution to  pay  again  to  him.  The  mistake  of  the  sheriff  in  this  case 
has  never  been  held  to  affect  the  conscience  of  the  junior  execution 
creditor,  who  had  no  right  to  demand  the  money.  The  amount  of  his 
execution  was  justly  due  to  him,  and  he  might  therefore  fairly  re- 
ceive it  of  the  sheriff,  or  of  any  other  person  who  was  willing  to  pay 
it  to  him.  It  was  the  business  of  the  sheriff  to  know  what  his  duty 
was,  and  if  he  mistook  it,  he  must  be  the  sufferer.  This  is  certainly 
a  much  harder  case  than  the  one  now  before  the  court.  In  the  case 
of  the  sheriff,  he  is  clearly  the  loser  to  the  whole  amount  of  the 
money  paid  by  him,  but  in  the  case  under  consideration  the  defend- 
ant was  supported  and  maintained  entirely  at  the  expense  of  the 
plaintiff  in  error,  who  furnished  him  with  boarding,  lodging  and 
clothing,  as  also  every  other  necessary  of  life.  If  he  would  have  made 
more  than  this  for  himself  had  he  put  in  the  same  time  under  the  idea 
that  he  was  free  and  his  own  master  may  be  doubtful ;  at  least  it  is 
not  certain  that  he  has  actually  sustained  any  loss. 

The  defendant  in  error  was  at  least  bound  in  gratitude  to  make 
compensation  for  the  care,  attention  and  expense  bestowed  and  in- 
curred in  raising  and  instructing  him  from  his  birth  until  he  became 
able  to  take  care  of  and  provide  for  himself.  And  as  his  counsel 
allege  that  he  is  a  man  of  considerable  merit,  it  may  be  presumed  that 
he  owes  this  in  part  to  his  good  education  and  the  careful  manner  in 
which  he  was  brought  up.  For  all  this  he  stood  indebted  to  the 
plaintiff  in  error,  who  has  either  paid  for,  or  furnished  it  himself. 
Besides,  it  may  be  observed  that  if  the  defendant  in  error  had  been 
abandoned  by  the  master  of  his  mother  in  his  earliest  stage  of  in- 
fancy, he  would  perhaps  have  fallen  into  the  hands  of  the  overseers 
of  the  poor  of  the  township  in  which  he  was  born,  and  I  am  inclined 
to  think  that  they,  under  the  fourth  section  of  the  abolition  act  of 
the  1st  of  March,  1781,  might  have  bound  him  out  as  an  apprentice 
until  he  would  have  arrived  at  the  age  of  twenty-eight  years ;  this 
they  were  clearly  authorized  to  do  in  certain  cases ;  so  that  the  lot 
of  the  defendant  in  error  may  have  been  better  than  otherwise  it 
would,  had  he  been  given  up  shortly  after  his  birth  by  the  master 
of  his  mother ;  for  certainly  he  was  not  bound  to  maintain  him  be- 
yond his  pleasure,  and  if  he  did  so  he  ran  the  risk  of  getting  nothing 
for  it. 

Upon  the  principle  that  is  contended  for,  this  action  ought  to  be 
supported  by  every  aj)prentice  that  is  bound  by  an  informal  or  void 
indenture.  After  he  has  served  out  his  apprenticeship,  he  might  turn 
round  and  sue  his  master  for  his  services.  So  Nelly,  who  served  Mr. 
.Stiles  in  the  case  already  cited,  might  sustain  a  suit  against  him  for 
her  services,  notwithstanding  she  was  adjudged  by  the  decision  of 
the  supreme  court  to  be  his  servant,  because,  according  to  the  last 
decision  on  her  condition,  in  the  case  of  Miller  v.  Dwilling,  she  was 
free.  Now,  such  suits  and  claims  have  never  been  thought  of,  and  I 
have  no  hesitation  in  saying  that  they  cannot  be  supported. 


GRATUITY    CONFERRED    UNDER    MISTAKE.  309 

The  case  of  negro  Peter  v.  Steele,  3  Yeates  250,  which  has  been 
cited  and  reHed  on  by  the  counsel  for  the  defendant  in  error,  does 
not  bear  upon  the  merits  of  this  case ;  it  decides  nothing  more  than 
that  the  merits,  if  the  plaintiff  has  any,  may  be  tried  in  an  action  of 
assumpsit,  which  I  think  is  perfectly  correct.  Again,  it  has  been  said 
that  in  actions  de  homine  replegiando,  brought  by  those  who  have 
been  held  as  slaves  or  servants,  in  which  recoveries  have  been  had, 
that  damages  have  been  uniformly  given  and  allowed ;  this  is  true, 
and  in  every  such  case  damages  follow  a  recovery,  of  course ;  but 
then  they  may  be  nominal  only,  and  certainly  ought  to  be  no  more  in 
a  case  where  the  defendant  in  the  action  dc  homine  replcgiaiido  had 
the  same  ground  for  claiming  and  accepting  of  the  service  of  the 
plaintiff  that  the  plaintiff  in  error  had  to  the  service  of  the  defendant 
in  error  in  this  case.  If  the  holding  the  plaintiff  in  the  action  dc 
homine  replegiando  be  decided  to  be  unlawful  some  damages  must 
be  given  for  that,  at  least  nominal,  but  they  are  not  necessarily  given 
upon  the  ground  of  compensating  for  services,  for  the  action  or  issue 
joined  in  it  does  not  involve  that  qviestion. 

It  is  not  pretended  that  there  was  any  express  contract  in  this 
case  between  the  parties  upon  which  the  plaintiff  below  can  sustain 
his  claim  against  the  defendant.  As  to  an  implied  assumpsit,  I  think 
that  none  can  be  raised.  The  defendant  below  might  have  conscien- 
tiously received  the  services  of  the  plaintiff  until  he  attained  the  age 
of  twenty-eight  years  if  he  had  continued  to  render  them,  and  would 
have  had  a  right  to  consider  and  apply  them  towards  the  satisfaction 
of  the  money  which  he  paid  for  him.  Suppose  Johnston  had  con- 
tinued to  serve  Urie  until  he  was  twenty-eight,  and  Urie  had  brought 
a  suit  against  his  vendor  of  Johnston's  servitude  to  recover  the  $550, 
would  not  Johnston's  having  served  out  the  whole  term  for  which 
he  was  sold  have  been  a  bar  to  the  action?  Most  certainly  it  would. 
See  Nickerson  v.  Howard,  19  John.  Rep.  113.  Although  Johnston 
was  not  bound  by  law  and  could  not  have  been  compelled  to  serve 
Urie,  and  in  that  way  satisfy  him  for  the  money  which  he  had  paid, 
and  was  entitled  to  be  compensated  for  in  some  way,  yet,  having 
done  so,  he  cannot  claim  now  to  have  his  character  changed  into  a 
hireling  and  be  paid  for  his  labor  contrary  to  the  understanding  that 
existed  between  them  during  the  whole  time  of  such  labor  or  service. 

The  judgment  of  the  court  below  is  reversed.^ 

^  In  Alfred  v.  Marquis  of  Fitzjames,  3  Esp.  3,  a  servant,  who  had  been  a 
slave  in  the  West  Indies,  came  to  England  and  continued  in  his  master's 
service  there,  without  agreement  as  to  wages.  He  was  not  allowed  to  re- 
cover in  assumpsit  for  wages,  as  "there  was  no  original  contract  of  service 
for  wages." 

In  Hickam  v.  Hickam,  46  Mo.  App.  496  (1891),  the  plaintiff,  who  was  an 
ignorant  negro  woman,  had,  after  the  emancipation  of  slaves  in  Missouri, 
been  induced,  by  her  former  master's  false  and  fraudulent  representations,  to 
render  services  under  the  supposed  continuance  of  the  status  of  a  slave,  and 
it  was  held  she  could  recover. 


/ 


3IO  MISTAKE   OF    FACT. 

BURROWS  V.  WARD. 

15  R.  I.  346.— 1886. 


\ 


Per  Curiam. — This  is  assumpsit  for  compensation  for  services 
rendered.  The  defendant  pleaded  the  general  issue,  and  on  trial  put 
in  testimony  to  show  that,  when  he  took  the  plaintiff  into  his  service, 
the  plaintiff  was  an  inmate  of  the  Providence  Reform  School,  under 
sentence,  and  that  he  took  him  as  an  apprentice,  pursuant  to  an  agree- 
ment with  the  keeper  of  the  Reform  School,  under  which  he  was  to 
have  the  services  of  the  plaintiff  until  he  should  arrive  at  the  age  of 
twenty-one,  paying  him  $100  at  that  time  if  he  continued  in  his 
service  until  then.  This  agreement  was  made  in  the  spring  of  1869, 
the  plaintiff  then  being  a  boy  less  than  twelve  years  of  age.  Under 
the  statute  it  was  only  the  trustees  of  the  Reform  School  who  were 
authorized  to  apprentice  inmates,  and  they  only  by  deed.  The  ap- 
prenticeship, therefore,  was  invalid.  The  plaintiff,  nevertheless,  re- 
mained in  the  service  of  the  defendant  between  four  and  five  years. 
He  then  absconded,  was  rearrested  and  recommitted  to  the  Reform 
School,  Shortly  afterwards  he  was  remitted  to  the  service  of  the 
defendant,  and,  as  the  defendant  testified,  at  his,  the  plaintiff's,  own 
earnest  request.  He  remained  in  the  service  of  the  defendant,  accord- 
ing to  his  own  testimony,  imtil  June  i,  1880;  according  to  the  testi- 
mony of  the  defendant,  until  June  26,  1878.  The  defendant  testified 
that,  according  to  a  record  or  memorandum  on  the  books  of  the  Re- 
form School,  the  sentence  expired  November  19,  1880,  and  that  he 
took  the  plaintiff  into  his  service  believing  that  he  could  retain  him, 
under  his  agreement,  until  that  date.  The  jury  returned  a  verdict 
for  the  plaintiff  for  $258.94.  The  case  is  before  us  on  a  petition  for 
new  trial  for  errors  in  the  rulings  of  the  court  below. 

The  first  two  errors  alleged  are  for  the  refusal  of  the  court  to 
charge,  in  effect,  that  the  plaintiff  could  not  recover  if  his  sentence, 
by  its  terms,  did  not  expire  before  November  19,  1880,  even  if  he 
attained  his  majority  before  that  time.  We  do  not  think  there  was 
any  error  in  the  refusal,  because,  under  the  statute,  sentences  to  the 
Reform  School  can  only  be  during  minority,  or  some  less  term.  If 
the  sentence  was  for  longer  than  during  minority,  it  was  void,  at 
least  for  the  excess.  There  was,  moreover,  no  proper  evidence  on 
which  the  jury  could  determine  the  terms  of  the  sentence,  the  record 
of  the  sentence,  which  is  the  best  evidence,  not  being  produced. 

The  third  error  alleged  is  for  the  refusal  of  the  court  to  instruct 
the  jury  that,  if  they  found  that  the  plaintiff  continued  to  work  for 
the  defendant  after  arriving  at  the  age  of  twenty-one,  without  any 
specific  contract,  and  without  notice  to  the  defendant  that  he  ex- 
pected wages,  then  the  plaintiff  could  not  recover.  The  court  refused 
this  request,  and  instructed  the  jury  that  the  plaintiff  might  recover 
for  any  services  rendered  to  the  defendant  after  he  was  in  fact 
twenty-one  years  of  age.  We  think  that  this  was  error.   If  the  plain- 


GRATUITY    CONFERRED    UXDEIl    MISTAKE.  3TI 

tiff  returned  to  the  defendant  at  his  own  request,  or  with  his  free 
consent,  under  the  agreement  with  the  keeper,  the  defendant  behev- 
ing  that  the  term  of  sentence  did  not  expire  until  November  19,  1880, 
the  plaintiff  would  not  be  entitled  to  recover  for  wages,  after  his 
arrival  at  the  age  of  twenty-one,  without  some  notice  or  intimation 
to  the  defendant  that  he  should  expect  wages  if  he  continued  in  his 
service  longer.  Moreover,  if  the  plaintiff  was  in  the  service  of  the 
defendant  with  his  own  consent,  with  the  understanding  that  he  was 
not  to  receive  wages  for  his  work,  then  we  do  not  think  that  he  would 
be  entitled  to  wages  without  some  notice  from  him  to  the  defendant 
that  the  understanding  had  come  to  an  end,  and  that  he  was  expect- 
ing to  be  paid. 

Exceptions  sustained. 


OSBORN  v.  THE  GOVERNORS  OF  GUY'S  HOSPITAL. 

2  Strange  728. — 1727. 

The  plaintiff  brought  a  quantum  meruit  pro  opere  et  labore  in 
transacting  Mr.  Guy's  stock  affairs  in  the  year  1720.  It  appeared  he 
was  no  broker,  but  a  friend  ;  and  it  looked  strongly  as  if  he  did  not 
expect  to  be  paid,  but  to  be  considered  for  it  in  his  will.  And  the 
chief  justice  directed  the  jury  that,  if  that  Avas  the  case,  they  could 
not  find  for  the  plaintiff,  though  nothing  was  given  him  by  the  will ; 
for  they  should  consider  how  it  was  understood  by  the  parties  at  the 
time  of  doing  the  business,  and  a  man  who  expects  to  be  made  amends 
by  a  legacy  cannot  afterwards  resort  to  his  action.^ 


ST.  JOSEPH'S  ORPHAN  SOCIETY  v.  WOLPERT. 

80  Ky.  86.— 1882. 

Judge  Hargis. — The  appellant,  a  charitable  institution  for  the 
rearing,  maintaining  and  educating  of  orphan  children,  brought  this 
action  against  John  Schulten,  as  guardian  of  Frank,  George,  Cath- 

^  Accord,  Sheperd  v.  Young,  adm'r,  8  Gray  152  (1857),  where  one  who 
had  supported  her  destitute  grandchild  was  not  allowed,  after  the  death  oi 
the  child  in  a  railroad  accident  and  the  recovery  of  damages  by  the  adminis- 
trator, to  recover  from  the  latter  the  amount  of  the  child's  board. 

But  in  re  Clabbon,  [1904]  2  Ch.  465,  the  guardians  of  the  poor  had  sup- 
plied necessaries  to  an  infant  who  afterward  became  entitled  to  a  legacy. 
The  court  said :  "I  cannot  agree  that  a  pauper  who  takes  relief  in  the  shape 
of  necessaries  which  keep  him  alive,  takes  that  relief  so  entirely  of  right,  that 
he  is  not  under  a  legal  liability  to  pay  if  he  afterwards  comes  into  money." 

In  Trainer  v.  Trumbull,  141  Mass.  527  (1886),  recovery  was  allowed  for 
necessaries  supplied  to  an  infant  pauper,  who  at  the  time  they  were  supplied, 
had  an  expectation  of  $10,000,  and  who  was  supplied  "on  the  credit  of  his 
expectations." 


312  MISTAKE   OF    FACT. 

erine  and  John  Wolpert,  and  against  each  of  said  infants  in  their  in- 
dividual capacity,  for  the  vakie  of  raising,  taking  care  of  and  edu- 
cating them. 

The  petition,  stripped  of  its  formal  parts,  substantially  alleges  that 
the  infants  named  were  supposed  by  appellant  and  their  guardian  to 
be  penniless,  and  that  the  appellant  received,  cared  for  and  educated 
them  as  persons  who  have  no  property  or  means,  and  that  such  per- 
sons were  so  received  and  cared  for  without  charge  in  the  institution ; 
but  that  the  by-laws  authorized  by  its  charter  provide  that  the 
guardian  of  orphans  wdio  have  property,  means  or  estate  might  con- 
tract wath  appellant's  board  of  trustees,  and  agree  upon  the  condi- 
tions of  their  admission ;  and  that  appellant  has  recently  discovered 
that  the  infant  appellees  did  have  some  money,  which  was  received 
from  their  mother's  estate,  and  as  a  pension,  by  reason  of  the  military 
service  of  their  father  in  the  United  States  army.    *    *    * 

After  the  appellant,  under  protest,  elected  to  prosecute  its  action 
against  the  guardian  of  John  Wolpert,  the  latter  demurred,  and  the 
court  sustained  the  demurrer,  and  that  ruling  forms  the  next  ques- 
tion to  be  determined. 

It  will  be  noticed  that  the  appellant  does  not  allege  any  promise 
or  agreement  with  the  guardian  of  the  infants,  either  for  board,  care 
or  education,  and  having,  from  charitable  motives,  taken,  raised  and 
educated  them  without  intending  to  charge  therefor,  as  it  alleges,  it 
cannot,  by  reason  of  this  express  and  executed  gratuity,  recover  on 
an  implied  assumpsit  raised  by  law,  unless  the  alleged  mistake  in  the 
condition  of  these  orphans  will  authorize  a  revocation  of  its  consent, 
and  impose  upon  them  a  liability  for  what  it  voluntarily  did.  It  is 
not  alleged  that  the  guardian  intentionally  or  fraudulently  suppressed 
the  knowledge  from  appellant  of  the  existence  of  the  small  sum  which 
they  received  by  distribution  from  their  mother's  estate  or  of  the 
pension ;  and  a  close  analysis  of  the  whole  case  presents  the  question 
whether  a  charitable  institution,  incorporated  for  the  purpose,  shall 
be  permitted  to  receive,  care  for  and  educate  orphans,  with  the  ex- 
press understanding  that  nothing  is  to  be  charged  therefor,  and 
when  it  is  discovered  that  such  orphans  have  received,  by  the  mis- 
fortunes of  war  and  the  charity  of  the  government,  a  pension  for 
the  purpose  of  subsistence,  which  is  exempt  from  attachment,  levy 
or  seizure,  revoke  its  gratuity  and  share  with  the  beneficiaries  that 
charity  which  they  have  received  from  another  source.  We  do  not 
think  it  can  be  allowed  this  privilege  of  recantation,  because  its 
charter  and  by-laws  authorized  it  to  contract  for  compensation  ;  yet 
it  failed  to  arm  itself  with  an  agreement  therefor,  and  no  deception 
is  alleged  to  have  been  practiced  to  prevent  this  exaction. 

And  it  has  been  held  too  often  to  admit  of  doubt  or  discussion  that 
an  executed  gift  or  gratuity  cannot  be  revoked  by  the  donor,  no 
matter  what  may  have  been  the  condition  of  the  donee,  or  what  char- 
ities he  shall  receive,  or  property  acquire  in  the  future,  unless  the 
donation  or  gratuity  were  the  result  of  fraud  or  mistake  in  its  exe- 
cution.   And  there  is  no  reason  why  an  executed  gift  of  personal 


/ 

GRATUITY    CONFERRED    UNDER    MISTAKE.  /  3I3 

property  shall  not  be  revoked  that  does  not  sustain  the  irrevocability 
of  gratuitous  labor,  care,  board  or  education  after  completion.  One 
is  no  more  the  executed  donation  of  value  than  the  other,  and  the 
same  principle  of  law  is  equally  applicable  to  both. 

The  creation  of  the  apjicllant  was  for  charitable  and  benevolent 
purposes,  and  the  undertaking  of  its  holy  mission  presupposes  that 
its  labor  of  love  is  to  be  done  without  money  and  without  price,  and 
unless  a  special  agreement,  which  seems  to  have  been  authorized  by 
its  charter,  in  view  of  the  gratuitous  nature  of  the  office  of  this  in- 
stitution, were  made  for  compensation,  we  do  not  think  it  can  recover 
for  board,  care  and  education  of  orphans  whose  control  it  has  sought 
with  the  avowed  purpose  of  bestowing  charity  upon  them.  There 
was  no  mistake  in  the  execution  of  these  charitable  donations,  which 
do  not  partake  of  the  nature  of  a  contract  to  the  same  degree  that 
ordinary  gifts  do;  but  the  objects  of  this  charity  seem  to  have  been 
less  needy  than  appellant  supposed,  and  this  is  all  we  are  authorized 
to  infer  from  the  allegations  of  the  petition.  Under  what  is  known  as 
the  hospitality  act,  an  uninvited  guest  cannot  be  held  liable  on  an 
implied  assumpsit,  and  certainly  infants,  who  are  invited  generally 
and  specially  to  a  charitable  institution,  cannot  be  held  bound  for  the 
charity  they  receive  without  an  express  promise  to  pay,  simply  be- 
cause they  happened  to  have  and  receive  property,  which  was  un- 
known to  the  managers  of  the  institution  until  after  the  performance 
of  the  charity.  Were  this  otherwise,  this  noble  charity  would  be  con- 
verted into  a  sort  of  house  of  private  entertainment,  to  which  obliga- 
tions of  indebtedness  might  be  contracted  unawares  by  orphans  and 
guardians,  and  those  who  received  its  assistance  free  would  become 
debtors  therefor  by  the  unexpected  development  of  ownership  hither- 
to unknown  to  the  institution. 

The  demurrer,  in  our  opinion,  was  properly  sustained. 

Judgment  affirmed.^ 


COOPER  V.  COOPER  et  al.,  Admrs. 

147  Mass.  370.— 1888. 


\ 


Contract  to  recover  for  services  as  housekeeper  for  defendant's 
intestate.  Trial  in  the  superior  court,  before  Bacon,  J.,  who  directed 
a  verdict  for  the  defendants,  and  the  plaintiff  excepted.  The  facts 
appear  in  the  opinion. 

W.  Allen,  J. — The  plaintiff  and  James  W.  Cooper  intermarried 
in  the  year  1869,  ^"d  lived  together  as  husband  and  wife  until  his 

^In  Manchester  v.  Burns  &  Trustee,  45  N.  H.  482  (1864),  the  plaintiff  city 
had  furnished  aid,  by  virtue  of  a  statute,  to  the  indigent  family  of  the  de- 
fendant, a  volunteer  soldier  while  in  the  service  of  the  United  States.  After 
his  discharge,  the  plaintiff,  not  knowing  of  the  discharge,  continued  to  give 
aid  to  the  family,  and  as  to  the  benefits  thus  conferred  under  this  mistake, 
plaintiff  was  allowed  to  recover  from  the  defendant. 


314  MISTAKE   OF    FACT. 

death  in  1885.  After  his  death  the  plaintiff  learned  that  a  former 
wife,  from  whom  he  had  not  been  divorced,  was  living,  and  brought 
this  action  of  contract  against  his  administrator  to  recover  for  work 
and  labor  performed  by  her  as  housekeeper  while  living  with  the  in- 
testate. The  court  correctly  ruled  that  when  the  parties  lived  together 
as  husband  and  wife  there  could  be  no  implied  promise  by  the  hus- 
band to  pay  for  such  work.  The  legal  relations  of  the  parties  did  not 
forbid  an  express  contract  between  them,  but  their  actual  relations 
and  the  circvmistances  under  which  the  work  was  performed  nega- 
tived any  implication  of  an  agreement,  or  promise,  that  it  should  be 
paid  for.   Robbins  v.  Potter,  1 1  Allen  588 ;  s.  c.  98  Mass.  532. 

The  case  at  bar  cannot  be  distinguished  from  that  cited,  unless 
upon  the  grounds  that  the  plaintiff  believed  that  her  marriage  was 
legal,  and  that  the  intestate  induced  her  to  marry  him  by  falsely 
representing  that  he  had  been  divorced  from  his  former  wife.  But 
the  fact  that  the  plaintiff  was  led  by  mistake  or  deceit  into  assuming 
the  relation  of  a  wife  has  no  tendency  to  show  that  she  did  not  act  in 
that  relation ;  and  the  fact  that  she  believed  herself  to  be  a  wife  ex- 
cludes the  inference  that  the  society  and  assistance  of  a  wife  which 
she  gave  to  her  supposed  husband  was  for  hire.  It  shows  that  her 
intention  in  keeping  his  house  was  to  act  as  a  wife  and  mistress  of 
a  family,  and  not  as  a  hired  servant.  There  was  clearly  no  obligation 
to  pay  wages  arising  from  contract ;  and  the  plaintiff's  case  is  rested 
on  the  ground  that  there  was  an  obligation,  or  duty,  imposed  by  law, 
from  which  the  law  raises  a  promise  to  pay  money  upon  which  the 
action  can  be  sustained. 

The  plaintiff's  remedy  was  by  an  action  of  tort  for  the  deceit  in  in- 
ducing her  to  marry  him  by  false  representations  or  by  a  false 
promise.  Blossom  v.  Barrett,  37  N.  Y.  434.  The  injury,  which 
was  sustained  by  her,  was  in  being  led  by  the  promise  or  the  deceit 
to  give  the  fellowship  and  assistance  of  a  wife  to  one  who  was  not 
her  husband,  and  to  assume  and  act  in  a  relation  and  condition  that 
proved  to  be  false  and  ignominious.  The  duty  which  the  intestate 
owed  to  her  was  to  make  recompense  for  the  wrong  which  he  had 
done  to  her.  It  is  said  that  from  this  duty  the  law  raised  a  promise 
to  pay  her  money  for  the  work  performed  by  her  in  housekeeping. 
The  obligation  to  make  compensation  for  the  breach  of  contract  could 
be  enforced  only  in  an  action  upon  the  contract.  The  obligation  to 
make  recompense  for  the  injury  done  by  the  tort  was  imposed  by  law 
and  could  be  enforced  only  in  an  action  of  tort ;  it  was  not  a  debt  or 
duty  upon  which  the  law  raised  a  promise  which  would  support  an 
action  of  contract.  The  same  act  or  transaction  may  constitute  a  cause 
of  action  both  in  contract  and  in  tort,  and  a  party  may  have  an  elec- 
tion to  pursue  either  remedy.  In  that  sense  he  may  be  said  to  waive 
the  tort  and  sue  in  contract.  But  a  right  of  action  in  contract  cannot 
be  created  by  waiving  a  tort,  and  the  duty  to  pay  damages  for  a  tort 
does  not  imply  a  promise  to  pay  them,  upon  which  assumpsit  can 
be  maintained.  Jones  v.  Hoar,  5  Pick.  285  ;  Brown  v.  Holbrook.  4 
Gray  102 ;  Ferguson  v.  Carrington,  9  B.  &  C.  59.   See  also  Metcalf 


EXISTENCE   OF    A    CONTRACT.  315 

on  Contracts,  9,  lo;  i  Chitty  on  Contracts,  87;  Earle  v.  Coburn,  130 

Mass.  596;  Milford  v.  Commonwealth,  144  Mass.  64. 

But  the  objection  to  maintaining  the  plaintiff's  action  lies  deeper. 
The  work  and  labor  never  constituted  a  cause  of  action  in  tort.  The 
plaintiff  could  have  maintained  no  action  of  tort  against  the  intestate 
for  withholding  payment  for  the  work  and  labor  in  housekeeping,  or 
for,  by  false  representations,  inducing  her  to  perform  the  work  with- 
out pay.  The  particular  acts  which  she  performed  as  a  wife  were  not 
induced  by  the  deceit,  so  that  each  would  constitute  a  substantive 
cause  of  action,  but  by  the  position  which  she  was  deceived  into  as- 
suming, and  would  be  elements  of  damage  in  an  action  for  that  deceit. 
Labor  in  housekeeping  was  a  small  incident  to  a  great  wrong,  and  the 
intestate  owed  no  duty  and  had  no  right  to  single  that  out  and  offer 
payment  for  it  alone ;  and  the  offer  to  do  so  might  well  have  been 
deemed  an  aggravation  of  the  injury  to  the  plaintiff. 

We  have  been  referred  to  Higgins  v.  Breen,  9  Mo.  493,  and  Fox  v. 
Dawson,  8  Martin  94,  as  decisions  contrary  to  the  conclusion  which 
we  have  reached.  It  does  not  appear  upon  what  ground  the  latter 
case  was  decided.  The  former  was  decided  in  favor  of  the  defendant, 
the  administrator,  upon  technical  grounds,  but  the  question  of  his 
liability  was  considered.  It  was  assumed  that  an  action  of  contract 
could  have  been  maintained  against  the  intestate  for  work  and  labor, 
and  the  question  discussed  was  whether  the  action  would  survive 
against  his  administrator,  and  it  was  held  that  it  would.  Upon  the 
evidence  in  the  present  case  we  think  that  no  action,  certainly  no 
action  of  contract,  for  the  cause  of  action  declared  on,  could  have 
been  maintained  against  the  intestate.  Even  if  the  intestate  had  been 
liable  in  tort,  we  are  not  prepared  to  assent  to  the  proposition  that  an 
action  of  contract  will  lie  against  an  administrator  for  a  tort  of  his 
intestate  for  which  no  action  of  contract  could  have  been  sustained 
against  him. 

In  the  opinion  of  a  majority  of  the  court,  the  entry  must  be : 

Exceptions  overruled.^ 


2.      MISTAKE  AS  TO  THE  EXISTENCE  OF  A  CONTRACT. 

VAN  DEUSEN  et  al.  v.  BLUM  et  al. 

18  Pick.  (Mass.)  229. — 1836. 

This  was  an  action  of  debt.  The  declaration  contained  two  counts 
upon  a  special  contract  under  seal,  a  third  upon  a  qitaiituui  meruit 
for  labor  performed,  and  a  fourth  upon  a  quantum  valebant  for  ma- 
terials furnished.  The  defendant  Blum  was  defaulted ;  the  other  de- 
fendant, Thouvenin,  appeared,  and  to  the  first  two  counts  he  pleaded 
non  est  factum,  and  to  the  third  and  fourth,  nil  debet. 

'Accord,  with  an  extended  opinion,  Payne's  Appeal,  65  Conn.  397   (1895). 


3l6  MISTAKE   OF    FACT. 

At  the  trial,  before  Morton,  J.,  the  plaintiffs  produced  the  con- 
tract, purporting  to  be  between  themselves  of  the  one  part,  and  Blum 
and  Thouvenin  of  the  other  part.  Blum  and  Thouvenin  were  part- 
ners, and  were  so  described  in  the  contract.  The  plaintiffs  had  duly 
executed  the  contract,  and  Blum  also  had  executed  it  by  signing  the 
company  name  "J.  C.  Thouvenin  &  Co.,"  and  annexing  a  seal.  There 
was  no  evidence  that  he  had  any  authority  to  execute  the  contract  in 
behalf  of  Thouvenin,  or  that  Thouvenin  was  present  at  the  execution 
or  ever  ratified  it.  The  judge  ruled  that  the  instrument  could  not  go 
in  evidence  to  the  jury  as  the  deed  of  Thouvenin. 

The  contract  was  for  building  a  dam  by  the  plaintiffs  for  Blum 
and  Thouvenin  across  the  Housatonic  river,  which  was  a  purpose 
within  the  scope  of  the  partnership  business.  The  plaintiffs  offered 
to  prove  that  they  built  the  dam  and  furnished  the  materials  therefor, 
and  they  claimed  against  Thouvenin,  under  the  third  and  fourth 
counts,  what  their  work  and  materials  were  worth.  Thouvenin  ob- 
jected to  the  admission  of  this  evidence,  and  contended  that,  there 
being  an  express  contract  executed  by  the  plaintiffs  and  Blum,  and 
that  contract  being  in  force  and  binding  upon  Blum,  the  plaintiffs' 
remedy  was  on  that  instrument  alone.  But  the  judge  ruled  that  the 
plaintiffs  might,  notwithstanding  that  contract,  recover  under  the 
third  and  fourth  counts,  upon  an  implied  promise,  for  all  the  ma- 
terials furnished  and  labor  performed  before  the  dissolution  of  the 
partnership. 

Thouvenin  and  Blum  dissolved  partnership  on  the  loth  of  Novem- 
ber, 1832,  and  all  the  partnership  property  was  conveyed  to  Blum, 
and  he  agreed  to  pay  all  the  partnership  debts.  The  dam  was  not 
finished  until  after  the  loth  of  November,  and  for  the  work  done 
previously  to  that  day  the  jury  found  a  verdict  against  Thouvenin. 

The  questions  arising  upon  these  facts  were  reserved  for  the  con- 
sideration of  the  whole  court. 

AIoRTON,  J.,  delivered  the  opinion  of  the  court. — Debt,  as  well  as 
assumpsit,  will  lie  on  a  quantum  meruit  or  a  quantum  valebant. 
I  Chit.  PI.  107 ;  2  Wms's  Saund,  117b,  note ;  Union  Cotton  Manufac- 
tory v.  Lobdell,  13  Johns  462.  Hence  these  counts  may  well  be  joined 
with  counts  upon  a  specialty.  Smith  v.  First  Congr.  Meetinghouse 
in  Lowell,  8  Pick.  178. 

It  was  long  doubted  whether  a  man  who  performed  work  in  con- 
sequence of  a  special  contract,  but  not  in  conformity  to  it,  could  re- 
cover for  the  services  rendered  and  materials  found.  There  are  many 
and  conflicting  authorities  on  the  subject.  They  have  all  been  care- 
fully examined  and  compared,  and  the  rule  established  by  our  court, 
as  we  think,  according  to  the  principles  of  justice  and  the  weight  of 
autliority.  He  who  gains  the  labor  and  acquires  the  property  of  an- 
other must  make  reasonable  compensation  for  the  same.  Hayward  v. 
Leonard,  7  Pick.  181  ;  Smith  v.  First  Congr.  Meetinghouse  in  Lowell, 
8  Pick.  178;  Munroe  v.  I^erkins,  9  Pick.  298;  Brewer  v.  Tyringham, 
12  Pick.  547. 

The  general  authority  derived  from   the  relation  of  partnership 


EXISTENCE   OF   A    CONTRACT.  317 

does  not  empower  one  partner  to  seal  for  the  company  or  to  bind 
them  by  deed.  It  requires  special  power  for  this  purpose.  See  Cady 
V.  Shepherd,  11  Pick.  400,  and  the  cases  there  cited.  Here  was  no 
evidence  of  any  previous  authority  or  subsequent  ratification.  The 
sealed  instrument  executed  by  one  partner  in  the  name  of  the  firm 
might  bind  him,  but  could  not  be  obligatory  upon  the  company.  And 
although  the  plaintifl:'s  might  have  had  a  remedy  upon  the  contract 
against  the  party  who  executed  it,  yet  they  were  not  bound  to  rely 
upon  him  alone. 

The  services  never  were  rendered  either  in  conformity  to  or  under 
such  an  agreement.  The  plaintiffs  undertook  to  execute  a  contract 
between  themselves  and  the  company.  But  there  being  no  such  con- 
tract in  existence,  they  are  left  to  resort  to  their  equitable  claim  for 
their  labor  and  materials.  So  far  as  these  benefited  the  company,  the 
plaintiffs  are  entitled  to  recover  against  them. 

Judgment  on  the  verdict. 


BOND  V.  AITKIN. 

6  Watts  &  S.  (Pa.)  165.— 1843. 

This  was  an  action  of  debt  brought  by  Charles  Bond  against  John 
Aitkin  and  James  Aitkin,  trading  under  the  firm  of  John  &  James 
Aitkin,  on  the  following  note : 

Six  months  after  date  we  promise  to  pay  to  Charles  Bond  or  order 
four  hundred  dollars,  with  five  per  cent,  interest,  without  defalca- 
tion, for  value  received.  Witness  our  hands  and  seals  this  ist  day  of 
October,  1836.  Jno.  &  James  Aitkin,     [l.  s.] 

The  plaintiffs  declared  in  one  count  against  the  defendants  as 
partners  in  a  sealed  instrument  alleged  to  have  been  executed  by 
them,  and  in  another  against  them  as  partners  for  money  lent.  James 
Aitkin  pleaded  payment  with  leave,  etc.  and  )ion  est  factum,  to  the 
first  count.  Judgment  by  default  was  entered  against  John. 

Bell,  president,  charged  the  jury  as  follows : 

The  plaintiff  declares  in  two  counts,  one  on  a  bill  single  alleged  to 
be  executed  by  John  and  James  Aitkin,  dated  October  i,  1836,  to 
secure  the  payment  of  $400.  To  this  the  defendant,  James  Aitkin, 
pleads  non  est  factum;  and  this  plea  raises  the  question  whether  the 
obligation  is  in  truth  the  deed  of  John  and  James,  as  the  plaintiff 
argues.  It  appears  the  bill  obligatory  was  signed  by  John  alone,  and 
although  he  used  the  name  of  his  partner  as  one  of  a  firm,  it  is  not 
binding  on  James ;  for,  generally  speaking,  one  partner  cannot  bind 
another  by  specialty  or  instrument  under  seal,  sealed  instruments  not 
being  such  as  are  used  in  transacting  partnership  affairs.  The  plain- 
tiff cannot,  therefore,  recover  on  his  first  count,  for  he  has  failed  to 
prove  the  bill  single  declared  on  is  the  deed  of  the  defendants. 

But  the  plaintiff,  in  a  second  count,  declares  against  John  and 


3l8  MISTAKE   OF    FACT. 

James  Aitkin,  as  partners,  for  money  loaned  to  them.  On  the  evi- 
dence, the  jury  can  entertain  Httle  or  no  doubt  that  the  money  sought 
to  be  recovered  was  borrowed  from  the  plaintiff  on  the  partnership 
account  and  applied  to  partnership  purposes,  and  so  became  the  joint 
debt  of  both  the  partners,  though  actually  borrowed  but  by  one  of 
them.  Prima  facie,  therefore,  both  would  be  liable  in  this  action.  But 
in  answer  to  this  statement  of  the  plaintiff's  claim,  the  defendants  set 
up  the  bill  single  given  in  evidence  by  the  plaintiff  under  his  first 
count  as  a  bar  to  his  recovery  on  the  second.  This  bill  single  must 
be  taken  as  executed  by  John  Aitkin  alone ;  for,  though  signed  in  the 
name  of  the  firm,  it  is  good  against  him  and  him  alone.  But  it  is  the 
undovibted  rule  in  Pennsylvania  that  if  the  creditor  of  a  firm  accept 
the  obligation  of  one  of  the  partners  for  the  firm  debt,  the  original 
claim  is  merged  and  extinguished  in  the  new  security,  and  the  cred- 
itor cannot  afterwards  have  recourse  to  the  first  liability,  as  is  at- 
tempted here. 

But  it  is  shown  that  James  Aitkin  promised  to  pay  this  debt  subse- 
quently to  the  execution  of  the  bill  single,  and  if  this  were  an  action 
against  him  alone,  I  incline  to  the  opinion  that  the  plaintiff  might 
recover  on  this  promise,  as  based  on  a  subsequent  consideration.  But 
this  is  an  action  against  two,  John  and  James ;  and  before  the  plain- 
tiff can  recover  he  must  show  a  joint  liability  on  the  part  of  the  de- 
fendants to  answer.  In  this  he  has  failed.  I  am,  therefore,  of  opinion 
the  plaintiff  is  not  entitled  to  recover  in  this  action,  and  your  verdict 
ought  to  be  for  the  defendants. 

The  plaintiff  excepted  to  the  charge,  and  assigned  the  following 
errors : 

1.  The  court  erred  in  charging  that  the  bill  single  executed  by 
John  Aitkin  was  an  extinguishment  of  the  joint  debt  of  both  defend- 
ants. 

2.  In  charging  that  the  plaintiff  could  not  recover  upon  the  sec- 
ond count  of  the  declaration. 

3.  In  charging  that  the  plaintiff  could  not  recover  upon  James 
Aitkin's  promise  to  pay. 

4.  In  charging  that  there  was  no  joint  liability. 

5.  In  charging  that  the  bill  single  was  void  as  to  James  Aitkin. 
The  opinion  of  the  court  was  delivered  by 

Sergeant,  J. — The  question  arising  in  this  case  has  undergone  a 
thorough  discussion  in  the  two  late  cases  of  Gram  v.  Seton,  i  Hall. 
262,  and  Cady  v.  Shepherd,  11  Pick.  400,  where  all  the  authorities 
are  examined,  and  the  principle  is  settled  that  a  partner  may  bind 
his  copartner  by  a  contract  under  seal,  in  the  name  and  for  the  use 
of  the  firm,  in  the  course  of  the  partnership  business,  provided  the 
copartner  assents  to  the  contract  previously  to  its  execution,  or  after- 
wards ratifies  and  adopts  it ;  and  this  assent  or  adoption  may  be  by 
parol.  And  we  are  satisfied  that  the  rule  is  founded  on  principles  of 
justice  and  policy,  and  sui)portcd  by  the  general  tenor  of  the  ad- 
judged cases  in  this  coimtry  and  in  Eugland.  The  only  question  in 
the  present  case  is,  whether  there  is  any  evidence  to  go  to  the  jury  to 


EXISTENCE   OF   A    CONTRACT.  3I9 

show  that  James  Aitkin  assented  to  the  giving  of  the  sealed  bill  in 
the  name  of  the  firm,  before  or  at  the  time  of  its  execution,  or  after- 
wards ratified  it ;  and  we  think  there  is.  The  admissions  made  by  him 
in  the  conversation  with  Carter,  if  believed,  in  connection  with  the 
fact  that  the  money  was  got  for  the  firm  and  went  to  its  use,  are  evi- 
dence to  go  to  the  jury.  He  said  that  though  he  did  not  know  of  it  at 
the  time  it  was  given,  yet,  if  he  had,  he  would  have  been  perfectly 
satisfied  ;  if  he  could  make  collections  he  would  pay  it  in  October.  He 
repeatedly  desired  it  should  be  sued  as  a  partnership  claim,  and  de- 
clared the  note  was  as  good  as  if  he  gave  his  individual  note.  This 
and  the  whole  tenor  of  the  conversation  tend  strongly  to  the  infer- 
ence that  he  had  authorized  the  giving  of  it ;  and  we  think  the  evi- 
dence ought  to  have  been  left  to  the  jury  to  say  whether  such  author- 
ity was  given,  or  whether  the  defendant  subsequently  ratified  the  in- 
strument. 

On  the  additional  count,  we  think  the  plaintiff  has  not  shown  a 
right  to  recover.  Where  the  bond  of  one  of  the  partners  is  taken  for 
an  antecedent  partnership  debt,  it  may  be  considered  either  as  pay- 
ment and  extinguishment  of  such  debt,  or  only  a  collateral  security, 
according  to  the  nature  of  the  transaction  and  the  circumstances  at- 
tending it.  Wallace  v.  Fairman,  4  Watts  378.  But  where  there  is  no 
antecedent  debt,  but  the  bond  of  one  partner  is  taken  at  the  time 
money  is  loaned  to  the  partnership,  and  as  the  consideration  for  loan- 
ing the  money,  it  can  hardly  be  treated  as  a  collateral  security.  It 
must  be  considered  as  all  one  transaction,  and  the  bond  as  the  only 
security  contemplated ;  unless,  perhaps,  there  were  strong  and  posi- 
tive evidence  to  show  an  express  agreement  to  the  contrary  by  all 
parties.  If  so,  then  in  this  case  the  bond  was  the  only  debt ;  the  plain- 
tiff, if  he  recovered  at  all,  must  recover  on  it,  and  not  on  the  money 
counts.  And  as  there  was  no  implied  contract  by  both,  so  the  express 
promise  proved  was  only  by  one ;  and,  therefore,  we  are  of  opinion 
the  charge  of  the  court  below  was  correct,  that  the  plaintiff  could  not 
recover  on  the  additional  count. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


TURNER  &  OTIS  v.  WEBSTER. 
24  Kan.  38.— 1880. 

Action  brought  by  Webster  against  Turner  and  another,  partners, 
to  recover  for  services  rendered  the  defendants.  Verdict  and  judg- 
ment for  plaintiff.  The  defendants  bring  the  case  to  this  court.  The 
facts  are  stated  in  the  opinion. 

Brewer,  J. — In  an  action  commenced  by  plaintiff's  in  error,  an 
attachment  was  issued,  placed  in  the  hands  of  the  sheriff,  and  by  him 
levied  upon  certain  mill  property.    Pending  the  attachment  proceed- 


320  MISTAKE   OF    FACT. 

ings,  the  sheriff,  under  direction  of  plaintiffs  in  error,  employed  de- 
fendant in  error  to  watch  the  property ;  and  this  action  was  brought 
by  defendant  in  error,  plaintiff  below,  to  recover  for  such  services. 
That  the  sheriff  was  authorized  by  plaintiffs  in  error  to  employ  de- 
fendant in  error,  and  that  the  latter  performed  the  services,  are  con- 
ceded facts.  The  dispute  is  as  to  the  compensation.  Webster  claims 
that  the  contract  price  was  three  dollars  per  day,  and  that  it  was 
worth  that  amount,  while  Turner  &  Otis  say  that  they  authorized  the 
sheriff  to  contract  for  only  one  dollar  and  a  half  a  day,  and  the  sheriff 
says  that  that  was  all  he  promised  to  pay.  The  misunderstanding 
seems  to  have  arisen  in  this  way :  After  the  attachment.  Turner  & 
Otis  requested  the  sheriff  to  find  some  one  to  guard  the  mill.  Meet- 
ing Webster,  he  asked  him  what  he  would  undertake  the  job  for. 
He  replied,  one  dollar  and  a  half  a  day,  and  nights  the  same.  The 
•  sheriff  understood  him  to  say  and  mean  one  dollar  and  a  half  for  each 
day  of  twenty-four  hours,  while  plaintiff  meant  that  amount  for  a 
day  of  twelve  hovirs,  and  the  same  for  the  night  time,  or  three  dollars 
for  every  twenty-four  hours.  The  sheriff  reported  the  offer  to  Turner 
&  Otis  as  he  understood  it,  and  they,  after  some  hesitation,  told  him 
to  accept  the  offer  and  employ  Webster.  Without  further  words  as 
to  the  price,  the  sheriff  gave  the  key  of  the  mill  to  Webster  and  told 
him  to  go  ahead.  Now,  the  contention  of  plaintiffs  in  error  is  that 
the  case  turns  on  the  law  of  agency ;  that  they  never  personally  em- 
ployed Webster ;  that  the  sheriff  was  only  a  special  agent  with  Hmited 
powers,  only  authorized  to  bind  them  by  a  contract  to  the  amount  of 
one  dollar  and  fifty  cents  per  day  of  twenty-four  hours  ;  that  Webster 
is  chargeable  with  notice  of  the  extent  of  the  sherift''s  authority,  and 
can  enforce  the  contract  as  against  the  plaintiffs  in  error  to  the  extent 
only  of  such  authority.  For  any  contract  beyond  that  amount,  the 
special  agent  binds  himself  alone,  and  not  the  principal.  On  the  other 
hand,  the  defendant  in  error  contends  that  where  services  are  con- 
tracted for  and  rendered,  and  no  price  stipulated,  the  law  awards 
reasonable  compensation  therefor,  and  that  where  there  is  a  misun- 
derstanding as  to  the  price,  the  one  party  understanding  it  at  one  sum 
and  the  other  at  a  different,  there  is  no  stipulation  as  to  the  price, 
and  that  it  makes  no  difference  whether  the  contract  be  made  through 
an  agent  or  with  the  principal  directly.  In  the  case  at  bar  he  contends 
that  it  is  immaterial  that  the  conversation  and  misunderstanding  were 
with  the  sheriff,  the  agent,  and  that  the  rule  is  just  the  same  as 
though  the  talk  and  misunderstanding  had  been  with  Turner  &  Otis 
personally. 

We  think  the  case  rests  upon  the  propositions  advanced  by  the  de- 
fendant in  error.  It  will  not  be  questioned  that,  where  the  minds  of 
two  contracting  ]:)arties  do  not  come  together  upon  the  matter  of 
price  or  compensation,  but  do  upon  all  other  matters  of  the  contract, 
and  the  contract  is  thereupon  performed,  the  law  awards  a  reasonable 
price  or  compensation.  Thus,  where  shingles  were  sold  and  deliv- 
ered at  $3.25,  but  there  was  a  dispute  as  to  whether  the  $3.25  was  for 
a  bunch  or  for  a  thousand,  it  was  ruled  that  unless  both  parties  had 


EXISTENCE   OF   A    CONTRACT.  32 1 

understandingly  assented  to  one  of  those  views  there  was  no  special 
contract  as  to  price.  Greene  v.  Bateman,  2  Woodb.  &  M.  239.  It  is 
said  by  Parsons,  in  his  work  on  Contracts,  Vol.  i,  p.  389,  that  "there 
is  no  contract  unless  the  parties  thereto  assent ;  and  they  must  assent 
to  the  same  thing,  in  the  same  sense."  Here,  Webster  never  assented 
to  a  contract  to  work  for  $1.50  a  day.  He  agreed  to  do  a  certain 
work,  and  did  it ;  but  his  understanding  was  that  he  was  to  receive 
$3  per  day.  Turner  &  Otis  employed  him  to  do  that  work,  and  knew 
that  he  did  it ;  but  their  understanding  was  that  they  were  to  pay  but 
$1.50  a  day.  In  other  words,  the  minds  of  the  parties  met  upon  every- 
thing but  the  compensation.  As  to  that  there  was  no  aggregatid 
mentium.  What,  then,  should  result?  Should  he  receive  nothing, 
because  there  was  no  mutual  assent  to  the  compensation  ?  That  were 
manifest  injustice.  Should  his  understanding  bind  both  parties? 
That  were  a  wrong  to  them.  Should  theirs  control?  That  were  an 
equal  wrong  to  him.  The  law,  discarding  both,  says  a  reasonable 
compensation  must  be  paid.  So  that  if  the  negotiation  had  been  be- 
tween the  parties  directly,  and  this  misunderstanding  had  arisen,  the 
rule  of  reasonable  compensation  would  unquestionably  have  obtained. 

Now,  how  does  the  law  of  agency  interfere?  The  proposition  of 
law  advanced  by  counsel  for  plaintiff  in  error,  that  a  special  agent 
binds  his  principal  to  the  extent  only  of  the  authority  given,  and  him- 
self by  any  promise  in  excess,  is  clear.  But  the  agent  made  no  prom- 
ise in  excess  of  his  authority.  He  promised  that  which  he  was  au- 
thorized to  promise.  Because  the  other  party  misunderstood  the  ex- 
tent of  the  promise  is  surely  no  reason  for  holding  the  agent  bound 
for  more  than  he  did  in  fact  promise.  The  agent  has  rights  as  well  as 
the  principal.  The  work  is  not  done  for  his  benefit.  He  has  dis- 
charged his  agency  in  good  faith  and  to  the  best  of  his  ability.  Why 
should  he  be  mulcted  in  any  sum  on  account  of  the  misunderstanding 
of  the  party  with  whom  he  contracted?  If  compensation  were  given 
on  the  basis  of  his  promise,  then,  if  his  promise  was  in  excess  of  his 
authority,  he  should  be  responsible  for  the  excess ;  but  where  the 
promise  is  ignored,  and  compensation  given  on  the  basis  of  value 
alone,  he  should  not  be  charged  with  the  excess  of  such  value  above 
his  authority.  An  agent  is  responsible  for  good  faith.  That  is  not 
questioned.  He  does  not  insure,  either  to  his  principal  or  the  oppo- 
site party.  Acting  in  good  faith  and  to  the  best  of  his  ability,  we  can 
see  no  reason  for  making  him  responsible  for  any  mere  misunder- 
standing. Justice  is  done  to  all  parties  by  ignoring  any  promise  or 
understanding  as  to  compensation  and  giving  to  the  laborer  reason- 
able compensation  for  the  v/ork  done,  and  requiring  the  party  receiv- 
ing the  benefit  of  such  work  to  pay  a  just  and  reasonable  price  there- 
for. 

The  case  was  submitted  to  the  jury  upon  this  basis,  and  while  the 

instruction  asked  by  plaintiffs  in  error  and  refused  was  imquestion- 

ably  good  law  in  the  abstract,  and  while  some  criticism  might  fairly 

be  placed  upon  one  of  the  instructions  given,  and  upon  the  answers 

Woodruff's  Cases — 21 


1 

322/  MISTAKE   OF    FACT. 

of  the  jury  to  two  special  questions,  we  think  the  main  question  was 
fairly  presented,  and  that  no  error  appears  justifying  a  reversal  of 
the  judgment,  and  it  will  be  affirmed. 

All  the  justices  concurring.^ 


CONCORD  COAL  CO.  v.  FERRIN  et  al. 
71  N.  H.  33.— 1901. 


■\ 


Assumpsit  by  the  Concord  Coal  Company  against  one  Ferrin  and 
another.  Verdict  rendered  for  defendants,  and  case  transferred  on 
plaintiff's  exceptions.    Exceptions  overruled. 

One  Bean,  being  indebted  to  the  defendants  for  labor  upon  a  model 
of  an  appliance  invented  by  him,  and  having  been  requested  to  make 
payment,  informed  the  defendants  that  one  of  the  plaintiffs,  Day, 
was  backing  him,  and  that  he  would  get  the  plaintiff  company  to 
furnish  a  ton  of  coal  for  application  as  payment  upon  his  indebted- 
ness ;  and  the  defendants  agreed  to  accept  a  ton  of  coal  in  part  pay- 
ment. Bean  thereupon  informed  the  plaintiffs  that  the  defendants 
wanted  a  ton  of  coal,  without  saying  anything  about  the  arrangement 
he  had  made  with  them.  The  coal  was  delivered  to  the  defendants 
and  used  by  them  in  their  business.  The  plaintiffs  charged  the  coal 
to  the  defendants.  Demand  for  payment  was  made  upon  the  defend- 
ants by  the  plaintiffs  by  letter  within  six  months  after  the  coal  was 
delivered,  and  again  after  about  a  year.  An  oral  demand  was  subse- 
quently made  on  several  occasions,  and  the  defendants  on  each  occa- 
sion denied  their  liability.  The  defendants  credited  the  coal  to  Bean's 
account.  Day  was  not  in  fact  backing  Bean,  and  had  given  him  no 
authority  to  iDind  him  in  any  way.  The  defendants  knew  that  the  coal 
came  from  the  Concord  Coal  Company,  and  that  the  plaintiffs  were  a 
firm  composed  of  Day  and  one  Emmons.  Both  parties  acted  in  en- 
tire good  faith,  but  were  deceived  by  Bean. 

Parsons,  J. — Both  parties  understood  that  upon  the  delivery  of 
the  coal  the  title  passed  to  the  defendants.  Their  misunderstanding 
related  solely  to  the  mode  of  payment.  The  plaintiffs  understood  the 
defendants  were  to  pay  them  the  customary  price,  and  charged  the 
coal  to  them.  The  defendants  understood  the  coal  was  delivered  as 
a  payment  upon  Bean's  indebtedness  to  them,  and  credited  it  upon 
his  account.  The  plaintiffs  understood  their  delivery  was  of  coal  to 
be  paid  for  in  cash  in  the  ordinary  course  of  business.  The  defend- 
ants understood  their  acceptance  was  of  coal  for  which  they  had 
already  paid.  To  this  branch  of  a  contract  of  sale  the  parties  did  not 
agree  in  fact,  either  in  terms  or  by  inference.  Hence  there  was  no 
contract  in  fact,  express  or  tacit  (Sceva  v.  True,  53  N.  H.  627,  632), 
because  of  the  mutual  mistake  as  to  payment.   As  there  was  no  con- 

'  Accord,  Collins  v.  Stove  Co.,  6^  Conn.  356  (1893)  ;  Russell  v.  Clough,  71 
N.  H.  177  (1901)  ;  McDonald  v.  Lynch,  59  Mo.  350  (1875). 


EXISTENCE   OF   A    CONTRACT.  323 

tract  of  sale,  in  the  absence  of  any  estoppel,  upon  discovery  of  the 
mistake  the  plaintiffs  might  have  retaken  their  coal  if  it  remained 
distinguishable  from  other  coal  of  the  defendants,  or  the  defendants 
might  have  required  the  plaintiffs  to  remove  it.  As  the  plaintiffs  had 
no  right  of  action  by  virtue  of  the  mistaken  acceptance  of  the  coal, 
they  cannot  now  recover  except  by  virtue  of  some  further  facts. 
The  additional  facts  stated  are  that  the  defendants  used  the  coal  in 
their  business,  and  the  plaintiffs,  within  six  months  and  subsequently, 
made  sundry  demands  for  payment.  It  does  not  appear  that  the  plain- 
tiffs ever  demanded  the  return  of  the  coal ;  but,  on  the  contrary,  they 
appear  to  have  uniformly  insisted  upon  the  contract  as  they  under- 
stood it.  In  the  original  transaction  both  parties  acted  in  entire  good 
faith,  but  were  deceived  by  Bean.  Upon  these  facts  the  trial  court 
found  a  verdict  for  the  defendants.  This  verdict  must  stand  unless 
the  specific  facts  found  are  inconsistent  therewith  as  matter  of  lav/. 

The  plaintiffs'  claim  is  that  the  defendants  by  their  use  of  the  coal 
charged  themselves  with  the  legal  duty  of  paying  for  it  in  accordance 
with  the  plaintiffs'  understanding  of  the  contract,  rather  than  their 
own,  or  at  least  of  paying  anew  in  money  the  usual  price  or  value  of 
the  coal.  The  question  is,  how  ought  the  coal  to  be  paid  for, — in  ac- 
cord with  the  understanding  of  the  plaintiffs,  or  with  that  of  the  de- 
fendants? It  is  manifest  that  if  the  plaintiffs  had  accompanied  the 
delivery  of  tiie  coal  with  an  invoice  charging  the  defendants  with  the 
price,  or  had  informed  them  it  was  delivered  on  their  credit,  or  if 
before  delivery  the  plaintiff's  had  inquired  of  the  defendants  as  to 
Bean's  authority,  or  if  the  defendants,  before  accepting, the  coal,  had 
informed  the  plaintiffs  that  they  accepted  it  only  for  application  on 
Bean's  debt,  the  controversy  would  have  been  avoided.  Whether, 
under  all  the  circumstances,  the  defendants  accepted  or  the  plaintiffs 
delivered  the  coal  under  such  circumstances  that  either  of  them  are 
now  estopped  to  set  up  their  understanding  of  the  transaction,  is 
mainly  a  question  of  fact.  If  it  were  found  that  the  defendants  were 
thus  in  default,  they  would  be  bound  in  contract  by  estoppel  (Sceva 
V.  True,  supra)  ;  while,  if  the  plaintiffs  were  considered  to  be  sim- 
ilarly estopped,  the  case  would  also  be  determined  upon  that  ground. 
As  the  general  verdict  is  found  for  the  defendants,  it  must  be  under- 
stood at  least  to  embrace  a  finding  that  no  estoppel  exists  against  the 
defendants.  Bank  v.  Church,  69  N.  H.  582,  44  Atl.  105. 

The  facts  disclose  no  contract  in  fact,  express,  tacit,  by  estoppel, 
or  implied  in  fact ;  and  the  sole  remaining  question  is  whether  the 
facts  establish  a  contract  implied  in  law,  or  a  contract  of  legal  duty, 
sometimes  called  a  quasi  contract.  Sceva  v.  True,  supra.  A  promise 
to  pay  what  it  is  one's  legal  duty  to  pay  is  implied  by  law.  Bixby  v. 
Moor,  51  N.  H.  402-404;  Eastman  v.  Clark,  53  N.  H.  276,  280,  16 
Am.  Rep.  192 ;  Sceva  v.  True,  53  N.  H.  627.  631-633 ;  Water  Co.  v. 
Metcalf,  63  N.  H.  427 ;  Gage  v.  Gage,  66  N.  H.  282,  283,  29  Atl.  543, 
28  L.  R.  A.  829 ;  Clark  v.  Sanborn,  68  N.  H.  411,  36  Atl.  14.  In  this 
case  the  legal  duty  is  wanting,  unless  it  can  be  predicated  upon  the 
mere  possession  and  use  of  property.    The  mere  fact  of  benefit  re- 


324  MISTAKE   OF    FACT. 

ceived  is  insufficient  to  establish  the  legal  duty  of  payment.  Clark  v. 
Sanborn,  supra,  is  precisely  in  point.  There  the  plaintiff  was  unable 
to  recover  for  services  valuable  to  the  defendants,  rendered  under 
the  expectation  that  they  would  be  paid  for,  for  the  reason  that 
the  defendants  did  not  accept  the  services  with  the  understanding 
that  they  were  to  make  payment.  In  the  absence  of  privity  of  con- 
tract, the  mere  possession  and  use  of  property  will  not  imply  a  prom- 
ise to  pay  for  it.  Ice  Co.  v.  Potter,  123  Mass.  28,  25  Am.  Rep.  9; 
Hills  v.  Snell,  104  Mass.  173,  177,  6  Am.  Rep.  216;  Boulton  v.  Jones, 
2  Hurl.  &  N.  564;  Benj.  Sales,  §§  59,  416.  It  is  contended  that  the 
plaintiffs  can  recover  because  otherwise  the  defendants  would  be  un- 
justly enriched  at  the  plaintiffs'  expense.  But  that  fact  is  not  found. 
Both  parties  trusted  and  were  deceived  by  Bean.  If  the  plaintiffs 
cannot  recover  of  the  defendants  for  the  coal,  they  have  a  claim 
against  Bean  for  its  value ;  while,  if  the  defendants  were  obliged  to 
pay  for  the  coal,  they  would  also  have  a  claim  against  Bean  for  the 
same  amount.  It  may  be  assumed  that  Bean  is  worthless.  But  there 
is  no  equitable  reason  why  the  plaintiffs  rather  than  the  defendants 
should  be  released  from  the  consequences  of  their  trust  in  Bean.  In 
view  of  the  inference  of  freedom  from  fault  which  the  general  verdict 
finds  for  the  defendants,  the  defendants'  equity  is  at  least  equal  with 
that  of  the  plaintiffs. 

As  no  facts  are  found  inconsistent  with  the  general  verdict  found 
for  the  defendants,  the  verdict  cannot  be  disturbed. 

Exceptions  overruled. 

Blodgett,  C.  J.,  did  not  sit.  The  others  concurred.^ 


ROCKFORD,  R.  I.  &  ST.  L.  R.  R.  v.  SAGE. 
65  III.  328. — 1872. 

Mr.  Justice  Sheldon. — This  was  an  action  of  assumpsit,  by  Sage, 
against  the  railroad  company,  to  recover  for  money  paid  for  survey- 
ing done  before  the  company  was  organized  or  its  charter  granted, 
and  for  services  and  expenses  as  director  of  the  company,  and  for 
$1,000  due  on  an  account  stated.  A  recovery  was  had  for  $1,000, 
which,  under  the  evidence,  must  have  been  upon  what  was  found  to 
be  an  account  stated.  The  defendant  appeals.     *     *     *     * 

We  find  nothing  in  the  evidence  which  should  be  considered  as 
amounting  to  the  adoption  of  any  resolution  by  the  board  of  direct- 
ors to  pay  for  these  services  and  expenses,  or  to  pay  the  bill  offered 
in  evidence.  There  was  some  evidence  tending  to  show  services 
rendered  and  expenses  incurred  by  the  plaintiff,  since  the  organiza- 
tion of  the  company,  apart  from  his  duty  as  director ;  for  all  such, 

*  See  also  Columbus,  etc.  Ry.  v.  Gaffncy,  reported  herein,  ante,  p.  19. 


EXISTENCE   OF    A    CONTRACT.  325 

he  may  recover  upon  a  qiiantnui  meruit.    T'ut  there  is  no  proof  of 
such  services  and  expenses  to  the  amount  of  $1,000. 

For  services  and  expenses  before  the  organization  of  the  company, 
which,  subsequently,  the  company  accepts  and  receives  the  benefit 
of,  and  promises  to  pay  for,  we  will  not  say  a  party  might  not  re- 
cover, in  virtue  of  such  express  promise ;  but  we  are  disposed  to  deny 
the  right  of  recovery  for  such  services  and  expenses  upon  any  im- 
plied promise  resulting  from  the  facts,  although  the  case  cited  by 
appellee's  counsel  of  Low  v.  Conn.  &  Passumpsic  Rivers  R.  R.  Co., 
46  N.  H.  284,  seems  to  sanction  such  a  right  of  recovery,  as  does  also 
the  case  of  Hall  v.  Verm,  and  Mass.  R.  R.  Co.,  28  Vt.  401,  as  re- 
spects services  rendered  subsequent  to  the  act  of  incorporation,  and 
prior  to  perfecting  the  organization  of  the  company,  but  not  for 
services  prior  to  the  act  of  incorporation. 

A  right  of  recovery  against  a  corporation  for  anything  done  be- 
fore it  had  a  proper  existence,  does  not  appear  to  rest  on  any  very 
satisfactory  legal  principle.  It  appears  more  reasonable  to  hold  any 
services  performed  or  expenses  incurred  prior  to  the  organization  of 
a  corporation,  to  have  been  gratuitous,  in  view  of  the  general  good 
or  private  benefit  expected  to  result  from  the  object  of  the  corpora- 
tion. It  seems  unjust  to  stockholders,  who  subscribe  and  pay  for 
stock  in  a  company,  that  their  property  should  be  subject  to  the  in- 
cumbrance of  such  claims,  and  which  they  had  no  voice  in  creating. 
N.  Y.  and  N.  H.  R.  R.  Co.  v.  Ketchum,  27  Conn.  170,  is  an  author- 
ity which  denies  the  liability  of  a  corporation  on  account  of  services 
rendered  prior  to  the  perfecting  of  its  organization ;  and  we  accept 
the  authority  of  that  case  as,  in  our  judgment,  establishing  the  more 
just  and  satisfactory  rule.  In  the  language  of  that  case,  "it  is  soon 
enough  for  corporate  bodies  to  enter  into  contracts,  incumbering 
their  property,  when  they  are  duly  organized  according  to  their 
charters  and  have  their  chosen  and  impartial  directors  to  conduct 
their  business."  To  the  same  effect  are  Franklin  Fire  Insurance  Co. 
v.  Hart,  31  Md.  59,  and  Safety  Life  Deposit  Ins.  Co.  v.  Smith,  65 
111.,  p.  309. 

The  judgment  must  be  reversed  and  the  cause  remanded. 

Judgment  reversed. 


LOW  v.  CONN.  AND  PASSUMPSIC  RIVERS  R.  R. 

45  N.  H.  370.— 1864. 

Assumpsit,  under  the  common  counts,  to  recover  for  labor  and 
services  in  organizing  said  railroad  company,  in  procuring  subscrip- 
tions to  its  stock,  and  getting  it  into  operation,  from  January  i,  1845, 
to  January  15,  1846 — $5,000;  for  one  horse,  and  for  services  at  re- 
quest, $300.  The  charter  was  granted  first  in  1835,  but  lapsed  be- 
cause of  failure  to  fulfil  certain  conditions.   In  1843  the  charter  was 


326  MISTAKE   OF    FACT. 

revived  by  act  of  legislature,  and  in  January,  1846,  the  corporation 
was  organized. 

Bellows,  J. — The  great  question  is  whether  the  plaintiff  is  en- 
titled to  recover  of  the  corporation  in  any  form  for  services  rendered 
by  him  antecedent  to  its  organization,  but  which  were  necessary  to 
enable  it  to  complete  that  organization ;  and  if  so  whether  the  action 
of  assumpsit  can  be  maintained.  In  considering  the  first  question 
it  will  be  assumed  for  the  present  that  the  services  were  necessary, 
that  they  were  rendered  at  the  request  of  one  or  more  of  the  original 
corporators,  or  of  those  who  were  associated  with  them,  and  that  the 
corporation  accepted  those  services  after  its  organization  and  en- 
joyed the  benefit  of  them.  Under  such  circumstances,  we  are  in- 
clined to  the  opinion  that  it  would  become  the  duty  of  the  corpora- 
tion to  pay  for  such  services ;  and  that  in  some  form  this  duty  could 
be  enforced.     *     *     *     * 

If  it  were  true,  that,  at  the  time  the  services  were  rendered,  the 
corporation  had  no  capacity  to  make  a  contract, — which  is  by  no 
means  clear  after  the  charter  has  been  accepted, — still  if  the  serv- 
ices were  rendered  for  the  corporation  upon  the  promise  of  the 
corporators  that  they  should  be  paid  for  by  it  when  its  organiza- 
tion was  perfected,  and  after  that  the  corporation  had  adopted  the 
contract  and  received  its  benefits,  we  think,  that,  upon  the  maxim 
that  a  subsequent  ratification  is  equivalent  to  a  prior  request,  it  may 
well  be  held  that  a  promise  to  pay  will  be  implied.  Upon  this  prin- 
ciple a  person  may  sue  on  a  contract  made  in  his  name  by  one 
assuming  to  have  authority,  but  having  none  in  fact.  So  the  title 
of  an  administrator  will  relate  back  to  the  death  of  the  intestate, 
so  as  to  entitle  him  to  sue  for  the  price  of  goods  sold  by  one  as- 
suming to  act  for  the  administrator  whoever  might  be  afterward  ap- 
pointed,— Broom's  Legal  Maxims  (676),  and  cases  cited, — and  still 
at  the  time  of  such  sale  there  was  no  one  in  existence  having  capac- 
ity to  make  a  contract  as  administrator.  See  also  Foster  v.  Bates, 
12  M.  &  W.  226.  So  if  one  without  authority  buy  goods  for  another, 
but  afterward  the  other  receives  them,  this  is  equivalent  to  a  previ- 
ous request,  i  Wms.  Saund.  264,  n.  i ;  Broom's  Legal  Maxims 
(596)  ;  Story  on  Agency,  sees,  244,  250;  Keyser  v.  School  District, 
35N.  H.481,482. 

In  such  cases  it  can  avail  nothing  by  way  of  defense  to  shoxV  that 
in  fact  the  party  had  no  capacity  to  make  such  antecedent  request, 
or  to  bind  himself  by  a  contract  as,  in  the  case  of  a  corporation, 
that  it  was  not  organized  at  all,  or  imperfectly, — any  more  than  to 
show  that  in  point  of  fact  there  was  no  such  request,  or  no  contract 
made.  But  the  promise  is  implied  by  law  from  the  fact  that  the 
party,  when  it  had  capacity  to  contract  has  taken  its  benefits,  and, 
therefore,  must  be  deemed  to  have  taken  its  burdens  at  the  same 
time ;  and  he  is  estopped  to  controvert  it,  either  by  showing  a  want 
of  capacity  to  make  a  contract  or  that  none  in  fact  was  made.  Upon 
the  same  principle  a  person  entering  into  a  contract  with  a  corpora- 
tion in  their  corj)orate  name  is  estopped  to  deny  that  it  is  duly  con- 


EXISTENCE   OF   A    CONTRACT.  32" 

stituted.  Dutchess  Cotton  M.  Co.  v.  Davis,  14  Johns.  238;  Congre- 
g-ational  Society  v.  Perry,  6  N.  H.  164;  Angell  &  Ames  on  Cor. 
594.  The  case  of  an  infant  is  in  point.  He  has  not  capacity  to  bind 
himself  by  a  contract  except  for  necessaries ;  but  if  after  he  arrives 
at  full  age  he  apply  the  goods  to  his  use,  he  is  bound  to  pay  as  he 
had  promised.  So  here,  if  the  corporation,  after  its  organization, 
has  elected  to  receive  the  benefit  of  services  rendered  for  it  prior  to 
such  organization,  the  law  may  well  imply  a  promise  to  make  rea- 
sonable compensation  for  them.  To  bind  the  corporation,  however, 
by  such  ratification  it  would  be  essential  that  it  had  previous  knowl- 
edge or  notice  of  the  existence  of  such  claim,  or  of  the  material  facts 
upon  which  it  is  founded ;  or,  at  least,  that  it  was  put  upon  inquiry 
in  respect  to  it.  2  Greenl.  Evi.,  sec.  66,  and  cases  ;  Bell  v.  Cunning- 
ham, 3  Pet.  81 ;  Wilson  v.  School  District,  32  N.  H.  128. 

The  case  before  us  stands  much  upon  the  same  ground  as  a  prom- 
ise to  the  corporation  before  it  is  organized,  to  take  and  pay  for 
shares  in  its  capital  stock  which  may,  when  adopted  after  organiza- 
tion be  enforced  by  a  suit  at  law.  Upon  these  principles  the  instruc- 
tions to  the  jury,  that  if  a  corporator  perform  necessary  labor  and 
expend  money  in  carrying  out  the  provisions  of  the  charter  and  to 
effect  an  organization,  and  this  is  assented  to  by  the  corporation,  or 
being  known  to  them  is  not  objected  to,  and  the  corporation  is  or- 
g'anized  and  enjoys  the  benefit  of  such  services,  the  law  implies  a 
promise  to  pay  for  them,  are,  as  we  think,  substantially  correct.  In- 
deed, it  would  be  immaterial  whether  such  services  were  rendered 
by  a  corporator  or  another,  because  the  subsequent  ratification  is 
equivalent  to  an  antecedent  request ;  but  we  think  that  without  such 
ratification  either  express  or  implied  from  taking  the  benefit  of 
such  services,  the  law  would  raise  no  such  promise  to  pay  from  the 
mere  fact  that  the  plaintiff  was  requested  to  render  them  by  one  of 
the  original  corporators  as  associates.     *     *     *     *i 

^  Re-asserted  upon  a  second  appeal,  46  N.  H.  284,  298. 

In  Little  Rock  and  Ft.  Smith  R.  R.  v.  Perry,  yj  Ark.  164  (1881),  after  a 
review  of  the  cases  in  equity  and  at  law,  the  court  concludes  upon  this  ques- 
tion (p.  191)  :  "From  all  the  authorities,  it  seems  clear  that,  in  order  to  re- 
cover, in  an  action  at  law,  the  plaintiff  must  show  either  an  express  promise 
of  the  new  company,  or,  that  the  contract  was  made  with  persons  then  en- 
gaged in  its  formation,  and  taking  preliminar}'  steps  thereto,  and  that  the 
contract  was  made  on  behalf  of  the  nev;  company,  in  the  expectation  on  the 
part  of  plaintiff,  and  with  the  assurance  on  the  part  of  the  projectors,  that 
it  would  become  a  corporate  debt,  and  that  the  company  afterward  en- 
tered upon  and  enjoyed  the  benefit  of  the  contract,  and  by  no  other  title  than 
that  derived  through  it.  From  these  circumstances  an  affirmance  would  be 
implied." 

In  Grape  Sugar  M'fg  Co.  v.  Small,  40  Md.  395  (1874"),  an  action  of  as- 
sumpsit against  the  corporation,  the  court  says  (p.  400)  :  "The  second  prayer 
proceeds  upon  the  assumption  that  the  defendant  is  not  liable,  provided  the 
work  was  done  prior  to  the  recording  of  the  certificate  of  incorporation.  It 
is  true,  that  under  the  general  incorporation  law  of  this  si  ate,  the  recording 
of  the  certificate  was  necessary  to  constitute  the  appellant  a  body  politic.  If, 
however,  the  contract  was  made  with  the  plaintiff  through  Doctor  Sim,  act- 
ing as  president  of  the  appellant,  after  the  certificate  had  been  signed  by  the 


328  MISTAKE   OF    FACT. 

COLE   AND  OTHERS   V.    CLARK. 

3  PiNN,  (Wis.)  303.— 1851. 

HuBBELL,  C.  J. — Clark  sued  Cole  and  others  in  the  county  court 
of  Jefferson  county.  The  declaration  was  in  assumpsit,  containing 
the  common  counts  only.  The  only  question  of  import  arises  on  the 
sealed  contract  between  the  parties,  offered  in  evidence  by  the  plain- 
tiff below.    It  contained,  among  other  clauses,  the  following : 

"The  said  party  of  the  first  part,  for,  etc.,  covenants  and  agrees 
to  put  in  a  good  workmanlike  manner,  two  water-wheels,  to  drive 
each  a  run  of  stone  in  the  flouring  mills  (the  same  that  are  now  in 
the  mill  of  L.  A.  Cole  &  Co.,  called  the  Rough  and  Ready  Mills, 
in  said  town  of  Watertown),  and  warrant  the  same,  with  two  hun- 
dred inches  of  water  to  each  wheel,  to  be  measured  at  the  bottom 
of  the  flume,  to  grind  fifteen  bushels  per  hour,  in  a  style  suitable 
to  make  good  flour ;  to  attach  all  machinery  to  said  wheels,  etc." 
"And  the  said  parties  of  the  second  part  covenant,  etc.,  to  pay  the 
said  Clark  $500  for  the  completion  of  said  work,  in  case  it  be  done, 
and  the  mill  performs,  when  completed,  according  to  the  above  con- 
tract." The  county  judge  charged  the  jury  that  they  were  to  be 
governed  by  the  construction  of  the  contract,  and  that  if  they  found 
that  both  run  of  stone  would  grind  fifteen  bushels  per  hour,  the 
plaintiff  had  complied  with  the  said  contract  in  that  respect. 

To  this  ruling,  exceptions  were  taken  by  the  plaintiff  in  error. 
It  was  a  case,  undoubtedly,  where  the  judge  was  bound,  if  he  could, 
to  construe  the  contract,  and  his  construction  was  binding  on  the 
jury.  But  this  court  is  unable  to  concur  with  the  learned  county 
judge  in  his  construction  of  the  instrument.  On  the  contrary,  we 
are  all  of  opinion  that  it  is  too  indefinite  and  uncertain  to  admit  of 
any  interpretation  as  a  matter  of  law.  The  offer  to  introduce  oral 
evidence  to  explain  the  understanding  of  the  parties  was  properly 
rejected.  Such  evidence  is  admissible  when  there  is  a  latent  am- 
biguity, which  is  made  to  appear  by  extraneous  facts,  and  which 
may  be  made  clear  by  parol  proof.  But  the  ambiguity  in  this  instance 
is  patent;  it  appears  on  the  face  of  the  instrument ;  and  it  arises  not 
from  the  use  of  words  of  art,  or  technical  phrases,  nor  from  the  ex- 
istence of  any  custom  or  usage,  but  from  the  failure  of  the  parties 
so  to  use  common  and  plain  words  as  to  express  any  definite  idea. 
They  have  not  told  us  themselves  what  they  did  mean ;  whether 
each  run  of  stone  was  to  grind  fifteen  bushels  per  hour,  or  whether 

members  of  the  proposed  corporation,  but  before  it  was  recorded,  and  the 
company,  after  its  incorporation  was  complete,  accepted  the  work  done  under 
the  contract,  it  will  be  estopped,  both  in  law  and  in  equity,  from  denying  its 
liability,  on  accftunt  of  tlic  same.  Tn  other  words,  the  appellant  will  not  be 
permitted  to  accept  (he  work  done  and  materials  furnished  by  the  plaintiff 
under  a  contract  made  prior  to  the  recording  of  the  certificate,  and  at  the 
same  time  deny  its  liability  under  it." 


EXISTENCE   OF    THE   SUBJECT    MATTER. 

both  were  to  do  it,  and  so  their  instrument  is  wholly  void.  Board- 
man  V.  Ford,  6  Peters  345. 

The  judgment  of  the  county  court  must  be  reversed  for  this  cause, 
and  the  case  must  go  back  for  a  new  trial.  The  plaintiff  then  can  re- 
cover quantum  meriut  upon  the  common  counts,  and  no  more.^ 

Judgment  reversed,  with  costs. 


3.      MISTAKE  AS  TO  THE  EXISTENCE  OF  THE   SUBJECT   MATTER. 

MOORE  V.  DES  ARTS. 
I  N.  Y.  359.— 1848. 

Appeal  from  chancery.  The  defendant  imported  into  the  city  of 
New  York  goods  on  which  the  collector  of  customs  exacted  and  re- 
ceived duties.  The  goods  were  by  law  entitled  to  a  drawback 
of  the  duties  in  case  they  were  exported  within  three  years.  The 
defendant  sold  the  goods  to  the  plaintiff  at  the  "long  price,"  which 
by  custom  and  agreement  included  the  amount  of  duties  paid,  and 
carried  to  the  purchaser  the  right  to  the  drawback.  Afterward,  and 
while  the  plaintiffs  yet  owned  the  goods  and  could  export  them  so  as 
to  get  the  drawback,  or  could  sell  them  in  the  market  at  the  "long 
price,"  the  secretary  of  the  treasury  decided  that  goods  of  that  kind 
were  duty  free,  and  thereupon  the  duties  were  refunded  to  the  im- 
porter. In  consequence  of  such  decision  the  right  to  a  drawback  was 
extinguished,  and  the  market  price  of  the  article  was  immediately  re- 
duced by  about  the  amount  of  duties  which  had  been  exacted.  Plain- 
tiff filed  a  bill  to  recover  the  amount  of  duties  returned  to  the  de- 
fendant. The  defendant  demurred  to  the  bill  for  want  of  equity, 
and  his  demurrer  was  overruled  by  the  vice  chancellor,  whose  de- 
cision was  reversed  by  the  chancellor  on  appeal,  and  the  bill  was 
ordered  to  be  dismissed.  The  complainant  appeals  to  this  court. 

Bronson,  J. — The  case  made  by  the  bill  amounts  to  this,  and  noth- 
ing more.  The  defendant  imported  the  spelter,  and  paid  the  duties 
which  were  demanded  by  the  government.  The  property  was  then 
sold  to  the  complainant  at  the  "long  price,"  or  full  market  value, 
which,  according  to  the  alleged  usage  in  the  city  of  New  York  and 
the  intention  of  the  parties,  gave  the  complainant  a  right  to  the 
drawback,  in  case  the  goods  should  be  exported  at  such  time  and  in 
such  manner  as  to  entitle  them  to  a  drawback.  While  the  goods 
still  remained  in  a  condition  in  which  they  might  have  been  exported 
and  the  drawback  secured,  the  secretary  of  the  treasury  decided  that 
the  goods  were  free  from  duty ;  and  thereupon  the  money  which  had 
been  wrongfully  demanded  of  the  defendant  when  he  imported  the 

*  Accord,  Sherman  v.  Kitsmiller,  17  S.  &  R.   (Pa.)  45   (1827). 


330  MISTAKE    OF    FACT. 

Spelter,  was  refunded  to  him  by  the  government.  Immediately  on 
publishing  the  decision  of  the  secretary  of  the  treasury,  the  right  to 
obtain  the  drawback  on  exporting  the  goods  was  lost ;  and  the  com- 
plainant also  lost  the  right  and  opportunity  of  obtaining  an  equiva- 
lent for  the  drawback  by  re-selling  the  goods  at  the  "long  price" — 
the  market  value  of  the  goods  being  reduced  by  about  the  amount  of 
the  duties.  On  this  case,  the  complainant  insists  that  the  money 
which  was  refunded  to  the  defendant  belongs  to  him. 

Although  there  is  a  seeming  equity  in  favor  of  the  complainant,  I 
have  not  been  able  to  discover  any  principle  upon  which  his  claim 
can  be  supported.  There  was  no  warranty  v;hen  the  complainant 
purchased  that  the  goods  were  dutiable ;  and  no  fraud  of  any  kind 
is  imputed  to  the  defendant.  So  far  as  appears  the  parties  dealt 
upon  equal  terms,  each  knowing  all  that  was  known  by  the  other. 
As  the  government  officers  have  decided  both  ways  on  the  question 
whether  the  spelter  was  subject  to  duties,  it  may  fairly  be  presumed 
that  these  merchants  knew  that  was  a  debatable  question ;  they 
knew  that  the  decision  which  had  been  made  by  the  collector  might 
be  overruled  by  the  secretary  of  the  treasury,  and  the  duties  be  re- 
funded to  the  importer.  With  this  knowledge  the  defendant  sold, 
and  the  complainant  purchased  the  spelter,  with  a  right  to  the  draw- 
back, should  that  right  ever  become  perfect.  But  there  was  no  sale  or 
purchase  of  the  duties  in  case  they  should  be  refunded  by  the  govern- 
ment, on  the  ground  that  the  duties  were  not  dutiable.  At  the  time 
of  the  sale,  there  were  two  contingencies  in  which  the  duties  might 
be  restored  to  the  importer ;  he  might  receive  them  as  a  drawback 
on  exporting  the  goods ;  or  the  money  might  be  refunded  on  the 
ground  that  it  was  improperly  demanded  at  the  first.  The  complain- 
ant purchased  the  right  to  the  drawback ;  but  he  did  not  purchase 
the  other  right.  And  I  do  not  see  how  we  can  give  it  to  him  with- 
out making  a  contract  for  the  parties. 

The  argument  for  the  complainant  goes  upon  the  ground  that  he 
purchased  the  right  to  the  duties  should  they  be  restored  by  the 
government  for  any  cause.  But  that  is  not  the  case  made  by  the  bill. 
He  only  purchased  a  right  to  the  duties  in  case  they  should  be  re- 
stored as  a  drawback  on  exporting  the  goods. 

There  is  no  allegation  that  the  defendant  did  any  act  which  de- 
prived the  complainant  of  the  right  to  the  drawback.  On  the  con- 
trary, the  allegation  is  that  the  right  was  lost  to  the  complainant 
immediately  on  the  making  and  publication  of  the  decision  of  the 
secretary  that  the  goods  were  free  from  duty.  And  such  was  evi- 
dently the  necessary  consequence  of  the  decision.  The  right  of 
drawback  was  at  an  end,  whether  the  defendant  received  the  money 
which  the  government  offered  to  refund  or  not.  And  the  decision 
that  such  goods  were  free,  would  of  course  reduce  their  market 
value  by  about  the  amount  which  had  before  been  charged  for  duties. 

There  is  a  further  difficulty  in  the  case.  The  bill  contains  no  alle- 
gation that  the  complainant,  at  the  time  the  secretary  made  his  deci- 
sion, intended  to,  or  would  have  exported  the  goods,  if  the  duties 


EXISTENCE   OF   THE   SUBJECT    MATTER.  33 1 

had  not  been  refunded  ;  nor  that  he  could  have  sold  the  property  to 
any  one  else  for  the  purpose  of  exportation ;  nor  that  the  g'oods  then 
bore  a  higher  price  in  any  foreign  market  than  they  did  in  our  own. 
Nor  does  it  appear  in  any  other  way,  that  the  complainant  lost  any- 
thing of  value,  by  losing  the  right,  which  he  purchased,  to  the  draw- 
back on  exporting  the  goods.  The  fall  in  the  market  value  of  the 
property  did  not  result  from  the  loss  of  the  right  of  drawback ;  but 
was  the  natural  consequence  of  the  decision  of  the  government  that 
the  goods  were  not  subject  to  duties. 

I  am  of  opinion  that  the  decree  of  the  court  of  chancery  is  right, 
and  should  be  affirmed. 

Decree  affirmed.^ 


MARTIN  V.  Mccormick. 

8  N.  Y.  331.— 1854. 

In  1839,  the  plaintifif  became  the  owner  in  fee  simple  of  a  house 
and  lot  in  the  city  of  New  York,  worth  $6,000.  On  the  first  day  of 
October,  1842,  they  were  sold  by  order  of  the  mayor,  aldermen  and 
commonalty  of  the  city,  for  the  taxes  assessed  upon  them  for  the 
years  1835,  1836  and  1838,  amounting  in  the  aggregate  including 
interest  and  costs  to  $105.70.  The  defendant  bid  them  in  for  the 
term  of  one  hundred  years,  and  thereby  became  entitled  to  a  lease 
thereof  on  the  first  day  of  October,  1844,  no  redemption  having 
then  been  made.  In  fact  he  did  not  obtain  the  lease,  supposing  that 
it  was  unnecessary  for  him  to  receive  it  before  he  should  give  the 
notice  to  the  tenant  to  redeem  under  the  provisions  of  chapter  230 
of  the  laws  of  1841.  On  the  twelfth  day  of  October,  1844,  he  caused 
the  notice  required  by  the  statute  that  the  premises  had  been  sold 
for  the  taxes  and  conveyed  to  him  for  one  hundred  years,  and  that 
unless  he  redeemed  them  within  six  months  the  conveyance  wovdd 
become  absolute.  The  plaintift',  a  few  days  after  the  expiration  of 
six  months  from  the  service  of  the  notice,  paid  into  the  office  of  the 
comptroller  of  the  city  for  the  defendant  and  in  redemption  of  the 
premises,  the  sum  necessary  for  that  purpose,  but  shortly  after  the 
payment  the  comptroller  and  the  defendant  informed  him  that  the 
payment  was  at  too  late  a  day  for  redeeming,  and  that  the  convey- 
ance to  the  defendant  had  become  absolute,  and  the  comptroller  re- 
paid to  him  the  money,  the  defendant  refusing  to  receive  it.    On  the 

^  Duty  of  Restitution. — A  purchaser  of  counterfeit  bonds  need  not  return 
the  bonds  before  bringing  an  action  to  recover  back  the  money  paid  for  them, 
Brewster  v.  Burnett,  125  Mass.  68  (1878)  ;  but  when  a  seller  of  goods  takes 
therefor  the  note  of  a  third  person,  purporting  to  be  indorsed  by  the  payee 
and  another,  and  the  indorsements  are  forged,  the  seller  cannot,  upon  dis- 
covering the  forgery,  maintain  an  action  against  the  buyer  for  goods  sold  and 
delivered,  unless  he  has  tendered  back  the  note.  Coolidge  v.  Brigham,  i  Met. 
(Mass.)  547  (1840). 


332  MISTAKE   OF    FACT, 

first  of  July,  1845,  the  conveyance  in  pursuance  of  the  bid  at  the  tax 
sale,  was  made  to  the  defendant.  On  the  third  of  July,  1845,  the 
plaintiff  believing  the  information  conveyed  in  the  notice  served 
upon  him  in  October,  1844,  was  true,  and  that  the  time  to  redeem 
the  premises  from  the  sale  had  expired  before  he  paid  the  money 
to  the  comptroller  in  April,  1845,  and  that  the  defendant  thereby 
had  acquired  an  absolute  title  to  the  premises  for  the  term  of  one 
hundred  years,  he  purchased  the  lease  and  such  term  of  the  defend- 
ant, and  paid  him  therefor  $1,800.  This  sum  he  sought  to  recover 
as  money  received  by  the  defendant  to  his  use. 

The  defendant  did  not  deny  the  fact  that  at  the  time  the  notice 
was  given,  October  12,  1844,  the  conveyance  had  not  been  made  to 
him,  but  alleged  that  he  was  informed  by  the  clerks  in  the  comp- 
troller's office  that  it  was  ready  for  him  and  that  it  made  no  differ- 
ence whether  he  had  it  or  not,  and  that  at  the  time  he  sold  his  lease 
to  the  plaintiff  he  was  not  aware  that  his  conveyance  had  not  become 
absolute.  He  also  insisted  that  the  lease  was  to  be  construed  as  of 
full  force  from  its  date,  the  first  day  of  October,  1844,  when  he  was 
entitled  to  receive  it. 

Judgment  for  the  defendant,  which  was  affirmed  at  general  term. 
(See  4  Sand.  366.)    The  plaintiff  appealed  to  this  court, 

Johnson,  J. — In  this  case  the  defendant  was  in  possession  of  an 
instrument  under  the  seal  of  the  corporation  of  the  city  of  New  York, 
by  which  there  purported  to  be  created  in  him  an  estate  for  the  term 
of  one  hundred  years,  in  a  house  and  lot  of  land  in  the  city  of  New 
York.  The  plaintiff  was  at  the  time  in  possession  of  the  house  and 
lot,  claiming  to  be  and  being  seized  thereof  in  fee,  unless  the  lease 
held  by  the  defendant  created  a  valid  term  for  years  in  him.  The 
defendant  as  matter  of  fact  believed,  the  lease  did  give  him  the  term 
which  it  purported  to'  convey.  The  plaintiff  also  so  believed,  and 
thereupon  a  bargain  was  entered  into  between  them  in  pursuance 
of  which  the  plaintiff  paid  the  defendant  $1,800,  and  received  in 
consideration  thereof  an  assignment  of  the  term.  The  plaintiff  now 
seeks  to  recover  back  this  money  upon  the  general  ground,  that  the 
defendant,  notwithstanding  his  apparent  interest  in  the  premises, 
had  no  estate  in  them  whatever,  the  lease  from  the  corporation  be- 
ing invalid,  and  that  he  purchased  the  lease  and  paid  the  money  un- 
der an  entire  misapprehension  and  mistake  as  to  the  facts  upon  which 
depended  the  validity  or  invalidity  of  the  defendant's  lease. 

This  is  not  the  case  of  money  paid  by  a  party  under  a  mistaken 
idea  of  the  existence  of  a  legal  obligation  binding  him  to  pay  it ; 
nor  that  of  a  party  seeking  to  resist  the  performance  of  an  executory 
contract  to  pay  money,  entered  into  under  such  circumstances  of 
mistake.  Of  this  latter  sort  was  Bell  v.  Gardner  (4  Man.  &  Gr.  11), 
in  which  the  action  was  upon  a  promissory  note  given  by  the  de- 
fendant for  the  amount  of  a  bill  of  exchange  on  which  defendant 
was  endorser,  but  which  had  been  altered  after  endorsement,  where- 
l)y  he  ceased  to  be  liable.  The  jury  found  that  the  defendant  when 
he  gave  the  note  had  no  knowledge  of  the  alteration,  but  the  judge 


EXISTENCE   OF    THE   SUBJECT    MATTER.  333 

refused  to  submit  to  them  the  question  whether  the  defendant  had 
the  means  of  knowledge.  All  the  judges  held  that,  this  being  only 
a  promise  to  pay,  the  defendant's  position  was  much  stronger  than 
if  he  had  been  plaintiff  in  an  action  to  recover  back  the  money ;  but 
as  the  case  had  been  argued  on  its  analogy  to  a  claim  to  recover 
back  money  paid,  they  considered  it  in  that  light  also,  and  approved 
of  Kelly  V.  Solari  (9  M.  &  W.  54),  in  which  they  held  it  to  have 
been  determined,  that  in  an  action  to  recover  back  money  paid  under 
a  mistake  of  facts,  it  was  not  necessary  to  negative  means  of  knowl- 
edge as  well  as  knowledge  of  the  true  state  of  the  facts. 

Kelly  v.  Solari,  belonged  to  the  former  class.  It  was  an  action 
to  recover  back  the  amount  paid  by  an  insurance  company  upon  a 
life  policy,  which  the  insured  had  by  mistake  permitted  to  expire. 
The  fact  that  it  had  lapsed  was  known  to  the  officers  of  the  com- 
pany, who  afterward  having  forgotten  the  fact  paid  the  loss.  The 
court  held  that  this  fact  of  forgetting  was  no  answer  to  the  action. 
It  is  not  necessary  to  pursue  this  line  of  cases,  for  they  do  not  touch 
any  ground  upon  which  this  plaintiff  can  succeed.  He  has  entered 
into  a  contract  which  has  been  executed,  and  his  position  is  that  of 
one  seeking  to  rescind  the  contract  and  get  back  the  consideration 
paid.  No  case  of  fraud  is  pretended,  McCormick  and  the  plaintiff 
both  believed  that  the  lease  was  valid,  and  one  bought  and  the  other 
sold  under  that  belief. 

The  parties  did  not  deal  with  each  other  upon  the  footing  of  the 
compromise  of  a  doubtful  or  doubted  claim,  but  upon  the  ground  of 
a  conceded  right  in  the  defendant.  He  was  assumed  by  both  of  them 
to  have  become  the  owner  of  a  term  for  one  hundred  years  in  the 
premises  in  question,  and  the  parties  dealt  with  each  other  upon 
that  basis  for  the  sale  and  purchase  of  that  interest. 

Then  as  to  the  subject-matter  upon  which  the  sale  was  to  ope- 
rate, the  plaintiff  having  actually  redeemed  the  premises  before  the 
execution  of  the  lease  to  the  defendant,  the  authority  to  convey 
which  the  corporation  had  acquired  was  defeated,  and  their  lease 
was  wholly  inoperative  to  confer  upon  the  defendant  any  right 
whatever,  and  had  no  more  significance  or  efficacy  in  law  than  if  it 
had  remained  unexecuted.  It  follows,  that  the  assignment  executed 
by  McCormick  to  Martin  did  not  convey  to  him  any  right.  The 
subject-matter  to  which  it  related  had  no  existence.  The  plaintiff 
in  my  judgment  occupies  the  same  position  which  any  other  person 
would  have  occupied  who  had  dealt  with  the  defendant  for  the  term 
of  one  hundred  years,  and  become  the  purchaser  of  it. 

Now  the  term  which  was  the  subject  of  the  contract,  contrary  to 
the  supposition  of  both  parties  had  no  existence,  and  in  all  that 
class  of  cases  where  there  is  mutual  error  as  to  the  existence  of  the 
subject-matter  of  the  contract,  a  rescission  may  be  had.  (i  Story 
Eq.,  sec.  141,  142,  143.)  The  case  of  Hitchcock  v.  Giddings  (4 
Price  135),  was  a  bill  by  a  vendee  of  a  remainder  in  fee  expectant 
upon  an  estate  tail.  A  recovery  had  been  suffered  at  the  time  of  the 
contract,  though  both  parties  were  ignorant  of  the  fact,  and  there 


334  MISTAKE    OF    FACT. 

had  been  no  fraud  from  knowledge  or  concealment  of  the  fact,  and  it 
was  decreed  that  a  bond  given  for  the  purchase  money  should  be 
delivered  up,  and  the  interest  which  had  been  paid  upon  it  should 
be  refunded.  I  do  not  see  how  the  principle  of  this  case  can  be  dis- 
tinguished from  that  at  bar ;  for  surely  it  can  be  no  ground  of  differ- 
ence in  result,  that  in  the  one  case  an  estate  which  had  once  existed 
had  at  the  time  of  the  contract  come  to  an  end,  while  in  the  other 
the  estate  which  was  the  subject  of  the  contract  had  no  existence 
at  any  time.   Allen  v.  Hammond  (ii  Pet.  71). 

The  judgment  below  should  be  reversed,  and  the  sale  be  declared 
rescinded,  etc.^ 


4.         MISTAKE  AS  TO  THE  TITLE  OF  A  VENDOR. 

DORSEY  V.  JACKMAN. 
I  S.  &  R.  (Pa.)  42.— 1814. 

TiLGHMAN,  C.  J. — This  is  an  action  for  money  had  and  received, 
brought  by  Jackman,  the  plaintiff  below,  against  Dorsey,  the  de- 
fendant, who  had  sold  and  conveyed  to  the  plaintiff  a  tract  of  land 
without  warranty  of  any  kind.  The  plaintiff  had  paid  the  purchase 
money,  after  which,  apprehending  the  title  to  be  defective,  and  hav- 
ing made  a  second  purchase  from  the  person  in  whom  he  supposed 
the  true  title  to  be  vested,  he  brought  this  action  to  recover  the  money 
paid  on  the  bad  title.  The  president  of  the  court  of  common  pleas 
of  Washington  county,  charged  the  jury  in  favor  of  the  plaintiff, 
whereupon  the  counsel  for  the  defendant  excepted  to  his  opinion, 
and  the  cause  has  been  removed  to  this  court  by  writ  of  error. 

The  opinion  of  the  court  of  common  pleas  was  founded  upon  this 
principle,  that  the  action  for  money  had  and  received  is  in  nature 
of  a  bill  in  equity,  and  lies  in  all  cases  where  the  defendant  has  re- 
ceived money  which  he  cannot,  in  good  conscience,  retain.  The 
money  having  been  paid  in  this  case  for  land,  to  which  the  defend- 
ant had  no  title,  the  consideration  of  the  payment  has  failed,  and 
therefore,  it  is  concluded,  ought  to  be  refunded.  But  although 
the  title  has  proved  defective,  it  does  not  follow  that  the  money 
cannot,  in  good  conscience,  be  retained,  because  it  may  have  been 
the  intent  of  the  parties,  that  the  purchaser  should  run  the  risk  of 
the  title.  Between  the  sale  of  i:^oods  and  of  lands  there  is  a  marked 
distinction.  In  the  former,  the  law  implies  a  warranty,  but  not  in 
the  latter.  This  distinction  is  of  long  standing,  not  founded  on  an 
arbitrary  rule,  but  existing  in  the  nature  of  things.  With  regard  to 
goods,  possession  is  strong  evidence  of  title,  and  the  only  evidence 

'  Accord,  Wood  v.  .Sheldon,  42  N.  J.  L.  421  (1880).  For  a  general  discus- 
sion of  the  riphts  of  the  purchaser  of  invalid  commercial  paper,  sec  Meyer  v. 
Richards,  163  U.  S.  385  (i8g6). 


TITLE   OF    A    VENDOR.  335 

which,  in  most  cases,  the  purchaser  can  obtain.  But  as  to  lands,  the 
case  is  altogether  different,  because  the  title  depends  on  writings 
only.  Of  these  writings,  one  party  is  as  able  to  judge  as  the  other; 
the  construction  is  often  doubtful,  and  in  doubtful  cases,  where  the 
purchaser  requires  no  warranty,  it  is  reasonable,  that  the  price 
should  be  reduced  in  proportion  to  the  hazard.  When  it  has  been 
long  understood,  that  no  warranty  is  implied  on  a  sale  of  lands,  it 
must  be  supposed  that  both  buyer  and  seller  proceeded  on  that  under- 
standing. Consequently,  the  purchase  money  may  be  retained  with 
good  conscience.  I  take  for  granted,  that  the  seller  has  practiced 
no  fraud  or  deception.  If  he  has,  the  case  is  altered,  and  the  pur- 
chaser may  be  relieved  on  other  grounds  than  failure  of  the  consid- 
eration. 

That  the  law  has  been  held  as  I  have  mentioned,  will  appear,  not 
only  from  the  opinions  of  elementary  writers,  but  from  adjudged 
cases,  both  at  law  and  in  equity,  and  I  know  of  no  adjudged  case  of 
good  authority  to  the  contrary.  In  the  case  of  Lord  Burkhurst  v. 
Fenner  &c..  Executors  of  Lady  Dacres,  i  Rep.  i,  it  was  determined 
that  if  one  seised  in  fee  convey  to  another  in  fee,  without  warranty, 
and  without  mention  of  title-papers,  yet  the  papers  pass  to  the  feoffee, 
"because  he  is  to  defend  the  land  at  his  peril ;  it  is,  therefore,  reasona- 
ble, that  he  should  have  the  papers  as  incident  to  the  land,  and  that 
the  feoffer  should  not  have  them,  because  he  can  receive  no  benefit 
by  keeping  them,  nor  sustain  damage  by  delivering  them,"  In  Ser- 
geant Maynard's  case  (2  Freem.  i),  the  sergeant  had  purchased  land 
and  paid  his  money,  but  a  common  recovery  being  necessary  to  com- 
plete the  title,  he  took  a  bond  from  the  seller,  conditioned  for  the 
suffering  of  the  recovery,  but  the  sergeant  having  discovered  a  defect 
in  the  title,  filed  a  bill  in  equity  to  obtain  restitution  of  his  money  ;  but 
the  court  decreed  against  him,  because  it  did  not  appear  that  the  seller 
had  been  guilty  of  any  fraud.  In  i  Fonbl.  363  to  366  (notes),  the 
cases  on  this  subject  are  collected,  and  the  law  laid  down  in  the  same 
manner.  In  Boyd  v,  Bopst,  tried  before  Chief  Justice  McKean  and 
Judge  Rush,  at  Easton,  June,  1785  (2  Dall.  91),  it  is  said,  that  the 
rule  caveat  emptor  applies  only  to  real  estate.  In  Cain  v.  Henderson, 
2  Binn.  108,  it  was  decided  by  this  court,  that  the  grantor  who  has 
given  no  warranty  is  a  competent  witness  to  support  the  title  of  the 
grantee.  This  I  take  to  be,  and  akvays  to  have  been,  the  practice  in 
all  the  courts  of  Pennsylvania,  and  is  incompatible  with  the  principle 
of  the  grantor  being  answerable  in  an  action  for  money  had  and  re- 
ceived.    *     *     *     * 

Confining  myself,  then,  to  the  present  case,  it  appears  to  me,  that 
to  support  the  action  would  be  to  introduce  a  dangerous  innovation, 
tending  to  disturb  what  has  long  been  considered  as  settled.  I  am, 
therefore,  of  opinion  that  the  judgment  should  be  reversed  and  a 
venire  facias  de  novo  awarded.  [Concurring  opinion  by  Yeates,  J. ; 
dissenting  opinion  by  Brackenridge,  J.]^ 

^In  Whittemore  v.  Farrington,  76  N.  Y.  452   (1879),  the  suit  was  brought 


336  MISTAKE   OF    FACT. 

NORTON  V.  HARDEN. 

15   Me.  45.— 1838. 

Assumpsit  for  money  had  and  received,  brought  to  recover  back 
the  consideration  money  paid  by  the  plaintiff  to  the  defendant  for 
the  assignment  of  a  bond  of  a  lot  of  land  in  Bangor.  The  defendant 
held  by  assignment  a  bond  for  the  conveyance  of  the  lot,  described 
in  the  bond,  on  payment  of  a  specified  sum.  Prior  to  the  bargain 
between  these  parties,  there  being  no  evidence  that  the  defendant 
knew  where  the  lot  was,  they  went  together  and  enquired  and  en- 
tered upon  land  supposed  by  them  to  be  the  same  described  in  the 
bond,  and  thereupon  the  defendant  assigned  over  the  bond  and  re- 
ceived the  price  agreed  on.  The  plaintiff  soon  afterwards  discovered 
that  the  lot  described  in  the  bond  was  a  different  one  from  that  seen 
by  the  parties,  and  much  inferior  to  it,  and  gave  notice  thereof  to  the 
defendant,  offered  back  the  bond,  and  demanded  the  money  paid 
by  him.  The  trial  was  before  Shepley,  J.,  who  instructed  the  jury, 
that  if  they  were  satisfied  from  the  testimony  that  the  defendant 
showed  to  the  plaintiff  a  different  lot  from  that  described  in  the 
bond,  before  the  contract  was  made  between  them ;  and  that  it  was 
made  upon  that  erroneous  information ;  and  that  from  the  descrip- 
tion in  the  bond  he  was  not  undeceived,  they  would  find  for  the  plain- 
tiff, whether  such  erroneous  information  was  given  by  the  defendant 
fraudulently,  or  through  mistake,  or  want  of  information  on  the 
part  of  the  defendant ;  and  if  not  thus  satisfied,  they  should  find  for 

to  rescind  an  agreement  between  the  parties  for  an  exchange  of  lands  and 
for  a  reconveyance  of  the  lands  deeded  under  said  agreement,  or  that  de- 
fendant be  required  to  remove  incumbrances  on  the  lands  deeded  by  him  under 
the  agreement.  The  court  said :  "A  party  who,  under  a  verbal  agreement 
for  the  conveyance  to  him  of  lands,  is  entitled  to  insist  upon  a  good  title, 
and  a  deed  with  covenants,  pays  the  consideration  and  is  then  tendered  a 
deed  without  covenants.  He  demands  a  deed  with  covenants  and  this  is 
refused.  He  then  accepts  the  deed  without  covenants,  and,  believing  the  title 
to  be  clear,  records  it,  and  continues  to  occupy  and  improve  the  property. 
An  encumbrance  unknown  at  the  time  to  both  parties  is  afterwards  discov- 
ered. Both  parties  are  innocent  of  any  fraud.  It  is  conceded  that  no  legal 
liability  rests  upon  the  grantor  in  such  a  case.  (Bates  v.  Delavan,  5  Paige, 
300,  307;  Burwell  v.  Jackson,  9  N.  Y.  535.)  In  the  absence  of  fraud  or 
covenants  a  purchaser  takes  the  title  at  his  own  risk.  Then  do  the  facts 
stated  entitle  the  plaintiff  to  any  equitable  relief?    We  think  not." 

In  Earle  v.  Bickford,  6  Allen  549  (1863),  the  conveyance  was  made  by 
the  assignee  of  an  insolvent  debtor  without  legal  authority.  The  con- 
veyance was  a  quit-claim  deed  and  it  was  held  that  "the  general  doctrine 
is  that  the  grantee  who  takes  such  a  deed  cannot  recover  back  the  con- 
sideration money  in  case  of  a  failure  of  the  title;  but  that  doctrine  does 
not  apply  to  this  case.  If  the  title  fails  for  want  of  authority  in  the  person 
who  .makes  the  deed  to  act  in  the  capacity  in  which  he  professes  to  act, 
the  consideration  may  be  recovered  back.  Shearer  v.  Fowler,  7  Mass.  31 ; 
William;*  v.  Reed,  5  Pick.  480;  Dill  v.  Wareham,  7  Met.  438;  Holden  v. 
Curtis,  2  N.  H.  61." 


TITLE   OF    A    VENDOR.  337 

the  defendant.    The  verdict  was  for  the  plaintiff,  and  the  defendant 
excepted. 

Shepley,  J. — '''  *  *  *  It  is  also  insisted,  that  the  case  is 
within  the  principle  of  the  decisions  of  this  court,  that  the  party,  who 
takes  a  deed  of  release  of  real  estate,  if  he  obtain  thereby  no  title, 
cannot  recover  back  the  money  paid.  Both  parties  in  such  cases  must 
be  supposed  to  understand  the  tract  of  land  purporting-  to  be  con- 
veyed. And  the  absence  of  all  covenants  of  title  is  satisfactory  evi- 
dence that  they  knew  that  the  title  was  doubtful,  and  that  the  con- 
tract was  made  upou  that  basis.  If  in  such  cases  there  is  any  mistake, 
it  is  rather  a  mistake  of  law,  than  of  fact.  But  the  substance  of  the 
contract  is,  that  the  party  purchasing  agrees  to  purchase  the  other's 
right,  whatever  it  may  be,  and  take  the  risk  of  the  title  upon  himself. 
And  in  such  cases  there  is  no  principle  of  law  which  authorizes  him 
to  reclaim  the  purchase  money  in  case  of  an  entire  failure  of  title. 
This  is  not  the  case  of  a  conveyance  of  real  estate,  but  the  assign- 
ment of  a  contract  for  a  conveyance,  and  the  contract  of  assignment 
made  upon  a  mistake  of  facts.  And  there  is  no  evidence  that  the 
plaintiff  obtained  any  benefit  from  it. 

Exceptions  overruled,  and  judgment  on  the  verdict. 


Earl,  J.,  m  MOORE  v.  WILLIAMS. 

IIS  N.  Y.  586,  592.— 1889. 

But,  aside  from  the  language  used  in  the  contract,  it  is  familiar 
law  that  an  agreement  to  make  a  good  title  is  always  implied  in  ex- 
ecutory contracts  for  the  sale  of  land,  and  that  a  purchaser  is  never 
bound  to  accept  a  defective  title,  unless  he  expressly  stipulates  to 
take  such  title,  knowing  its  defects.  His  right  to  an  indisputable 
ti^le,  clear  of  defects  and  incumbrances,  does  not  depend  upon  the 
agreement  of  the  parties,  but  is  given  by  the  law.  (Sugden  on 
Vendors  (13th  ed.)  14;  Rawle  on  Gov.  430;  Burwell  v.  Jackson,  9 
N.  Y.  535;  Delavan  v.  Duncan,  49  id.  485.)  Within  the  meaning 
of  this  rule,  at  least,  according  to  the  decisions  in  this  state,  a 
good  title  means  not  merely  a  title  valid,  in  fact,  but  a  marketable 
title  which  can  again  be  sold  to  a  reasonable  purchaser  or  mort- 
gaged to  a  person  of  reasonable  prudence  as  a  security  for  the  loan 
of  money.  A  purchaser  will  not  generally  be  compelled  to  take  a 
title  when  there  is  a  defect  in  the  record  title  which  can  be  cured 
only  by  resort  to  parol  evidence,  or  when  there  is  an  apparent  in- 
cumbrance which  can  be  removed  or  defeated  only  by  such  evi- 
dence ;  and,  so  far  as  there  are  any  exceptions  to  this  rule,  they 
are  extraordinary  cases  in  which  it  is  very  clear  that  the  purchaser 
can  suffer  no  harm  from  the  defect  or  incumbrance.  In  Swayne  v. 
Woodruff's  Cases — 22 


338  MISTAKE   OF    FACT. 

Lyon  {(ij  Pa.  436),  Sharsvvood,  J.,  said:  "It  has  been  well  and 
wisely  settled  that,  under  a  contract  for  the  sale  of  real  estate,  the 
vendee  has  the  right  not  merely  to  have  conveyed  to  him  a  good 
title,  but  an  indubitable  one.  Only  such  a  title  is  deemed  market- 
able ;  for  otherwise  the  purchaser  may  be  buying  a  law  suit  which 
will  be  a  very  severe  loss  to  him  both  of  time  and  money,  even  if  he 
ultimately  succeeds.  Hence  it  has  been  often  held  that  a  title  is  not 
marketable  when  it  exposes  the  party  holding  it  to  litigation."  In 
Dobbs  V.  Norcross  (24  N.  J.  Eq.  327),  it  was  held  that  "every  pur- 
chaser of  land  has  a  right  to  demand  a  title  which  shall  put  him  in 
all  reasonable  security  and  which  shall  protect  him  from  anxiety, 
lest  annoying,  if  not  successful,  suits  be  brought  against  him  and 
probably  take  from  him  the  land  upon  which  monev  was  invested. 
He  should  have  a  title  which  should  enable  him,  not  only  to  hold 
his  land,  but  to  hold  it  in  peace,  and  if  he  wishes  to  sell  it,  to  be 
reasonably  sure  that  no  flaw  or  doubt  will  come  up  to  disturb  its 
marketable  value."^ 


TAYLOR   V.    HARE. 

I  Bos.  &  P.  N.  R.  260.— 1805. 

Plaintiff  and  defendant  made  a  contract  whereby  plaintiflf  in 
return  for  a  consideration  to  be  paid  was  to  have  the  use  of  a  patent 
right  which  defendant  had  obtained  as  the  inventor.  Plaintiif  used 
the  patent  and  paid  the  stipulated  sums  to  defendant.  It  later  ap- 
peared that  the  defendant  was  not  the  inventor  of  the  invention  for 
which  he  had  obtained  the  patent ;  the  apparatus  having  been  in 
public  use  before  defendant  obtained  his  patent.  This  fact  was  un- 
known to  both  plaintiff  and  defendant  at  the  time  of  the  performance 
of  the  contract.  The  defendant's  patent  was  not  repealed.  Plain- 
tiff sues  to  recover  back  the  sums  he  paid  for  the  use  of  the  patent. 

Sir  James  Mansfield,  C.  J. — It  is  not  pretended  that  any  action 
like  the  present  has  ever  been  known.  In  this  case  two  persons 
equally  innocent  make  a  bargain  about  the  use  of  a  patent,  the 
defendant  supposing  himself  to  be  in  possession  of  a  valuable  patent 
right,  and  the  plaintiff  supposing  the  same  thing.  Under  these  eir- 
cumstances  the  latter  agrees  to  pay  the  former  for  the  use  of  the 
invention,  and  he  has  the  use  of  it ;  non  constat  what  advantage  he 
made  of  it;  for  anything  that  appears  he  may  have  made  consid- 
erable profit.  These  persons  may  be  considered  in  some  measure 
as  partners  in  the  benefit  of  this  invention.  In  consideration  of  a 
certain  sum  of  money  the  defendant  permits  the  plaintiff  to  make 
use  of  this  invention,  which  he  would  never  have  thought  of  using 
had  not  the  privilege  been  transferred  to  him.     How  then  can  we 

'Accord,  I'urvvfll  v.  Jackson,  9  N.  Y.  5.35,  547   (1854). 


TITLE    OF    A    VENDOR.  339 

say  that  the  plaintiff  ought  to  recover  hack  all  that  he  has  paid? 
I  think  that  there  must  be  judg-inent  for  the  defendant. 

Heath,  J. — There  never  has  been  a  case  and  there  never  will 
be,  in  which  a  plaintiff,  having-  received  benefit  from  a  thing  which 
has  afterwards  been  recovered  from  him,  has  been  allowed  to  main- 
tain an  action  for  the  consideration  originally  paid.  We  cannot 
take  an  account  here  of  the  profits.  It  might  as  well  be  said,  that  if 
a  man  lease  land,  and  the  lessee  pay  rent,  and  afterward  be  evicted, 
that  he  shall  recover  back  the  rent,  though  he  has  taken  the  fruits 
of  the  land. 

RooKE,  J. — I  am  of  the  same  opinion. 

Chambre,  J. — The  plaintiff  has  had  the  enjoyment  of  what  he 
stipulated  for,  and  in  this  action  the  court  ought  not  to  interfere, 
unless  there  be  something  ex  aequo  et  bono  which  shows  that  the 
defendant  ought  to  refund.  Here  both  parties  have  been  mistaken ; 
the  defendant  has  thrown  away  his  money  in  obtaining  a  patent  for 
his  own  invention ;  not  so  the  plaintiff,  for  he  has  had  the  use  of 
another  person's  invention  for  his  money.  In  the  case  of  Ark- 
wright's  patent,  which  was  not  overturned  till  very  near  the  period 
at  which  it  would  have  expired,  very  large  sums  of  money  had  been 
paid  and  though  something  certainly  was  paid  for  the  use  of  the 
machines,  yet  the  main  part  was  paid  for  the  privilege  of  using  the 
patent  right,  but  no  money  ever  was  recovered  back  which  had  been 
paid  for  the  use  of  that  patent.  I  am  therefore  of  opinion  that  judg- 
ment of  non-suit  should  be  entered. 

Judgment  of  non-suit. 


SMART   V.   GALE. 

62  N.  H.  62.— 1882. 

Assumpsit  for  money  had  and  received.  Facts  found  by  a 
referee,  September  3,  1879,  the  plaintiff  purchased  of  the  defendant 
the  stock  of  goods,  furniture,  fixtures  and  good  will  of  a  fruit  store 
in  Concord,  for  the  sum  of  $3,200,  with  an  agreement  that  neither 
the  defendant,  nor  his  son  who  had  been  a  clerk  in  the  store, 
should  engage  in  the  same  business  in  Concord  for  ten  years,  agree- 
ing to  pay  therefor  by  conveying  to  the  defendant  a  house  valued 
at  $2,400,  and  giving  notes  for  $600  and  $200,  secured  by  mortgage 
on  all  the  property  in  the  store  except  the  stock.  The  defendant, 
by  a  bill  of  sale  under  seal,  conveyed  to  the  plaintiff  all  the  stock 
in  trade,  furniture,  fixtures,  including  shelving  and  counters,  and  all 
other  personal  property  in  the  store  and  store-cellar.  The  bill  of 
sale  also  contained  the  following:  "And  I  hereby  covenant  with 
the  said  grantee,  that  I  am  the  lawful  owner  of  the  said  goods  and 
chattels,  that  they  are  free  from  all  incumbrances,  and  that  I  have 
good  right  to  sell  the  same  as  aforesaid,  and  that  I  will  warrant  and 


340/  MISTAKE    OF    FACT. 

defend  the  same  against  the  lawful  claims  and  demands  of  all  per- 
sons." He  also  gave  to  the  plaintiff  a  bond  in  accordance  with  his 
agreement  not  to  engage  in  business  for  ten  years.  The  plaintiff 
conveyed  the  house  to  the  defendant,  and  gave  him  a  note  for  $600, 
and  a  note  for  $200,  secured  by  mortgage,  as  had  been  agreed. 
No  price  was  fixed  for  any  portion  of  the  defendant's  property 
separate  from  the  rest.  The  plaintiff  immediately  entered  into 
possession  of  the  store  and  other  property  purchased.  He  did  not 
rescind  or  attempt  to  rescind  the  contract.  He  did  not  reconvey  or 
offer  the  property,  or  any  part  of  it,  back  to  the  defendant.  In 
December,  1879,  he  was  informed  that  the  owner  of  the  store  owned 
the  fixtures,  and  thereupon  he  commenced  this  action,  December  17, 
1879.  He  continued  to  occupy  the  store  till  about  June  i,  1880, 
when  he  abandoned  it  and  surrendered  the  key  to  the  agent  of  the 
owner,  leaving  therein  all  the  property  purchased  of  the  defendant 
except  the  stock  of  goods. 

Clark,  J. — The  plaintiff  seeks  to  recover  the  value  of  the  fixtures 
on  the  ground  of  a  failure  of  consideration.  This  is  not  a  case  of  a 
payment  made  upon  a  legal  consideration  which  has  wholly  failed, 
and  may  therefore  be  recovered  back.  Leach  v.  Tilton,  40  N.  H. 
473,  475.  There  was  no  separate  valuation  of  the  fixtures,  and  no 
offer  to  return  them.  Weeks  v.  Robie,  42  N.  H.  316.  The  contract 
was  entire,  and  has  never  been  rescinded,  and  the  action  cannot  be 
maintained.  Way  v.  Cutting,  17  N.  H.  450;  Miner  v.  Bradley,  22 
Pick.  457;  Clark  v.  Baker,  5  Met.  452;  Bassett  v.  Percival,  5 
Allen  345.  Judgment  for  the  defendant. 


STEELE  V.  SANCHEZ. 

80  Iowa  507. — 1890. 


\ 


Beck,  J. — i.  Plaintiff  alleges  in  his  petition  that  under  a  parol 
contract  he  delivered  certain  stone  to  defendant,  and  asks  to  recover 
therefor.  A  second  count  upon  the  same  action  is  in  the  quantum 
meruit  form,  but  recovery  is  sought  upon  one  count  only.  De- 
fendant, answering  these  counts  of  the  petition,  alleges  that  he 
owned  a  quarry  from  which  plaintiff,  under  a  parol  contract  with 
him,  quarried  and  removed  stone,  being  bound  to  pay  defendant 
15  per  cent,  of  the  stone  quarried;  and  the  stone  in  question  in  this 
case  was  received  by  defendant  under  this  contract.  The  answer 
sets  up  a  counter-claim  for  stone  received  by  plaintiff  and  not  paid 
for.  An  amended  petition  seeks  to  recover  for  stone  delivered  to 
defendant  upon  a  contract  under  which  he  was  to  quarry  stone  upon 
land  claimed  by  defendant,  and  deliver  a  part  of  the  stone  to  de- 
fendant. The  defendant  had  no  title  to  the  quarry,  or  right  to  obtain 
or  sell  stone  therefrom,  and  therefore  plaintiff  is  entitled  to  recover  at 
least  the  value  of  his  labor  in  quarrying  the  stone.   The  plaintiff  re- 


TITLE   OF   A    VENDOR.  34 1 

plied  to  defendant's  answer,  denying  all  allegations  thereof,  "but  ad- 
mits that  defendant  received  the  stone  named,  and  many  more."  The 
reply  contains  this  language:  "Says  there  was  some  kind  of  a  con- 
tract between  him  and  the  defendant  by  which  he  was  to  pay  for 
the  stone  in  the  quarry,  but  said  such  contract  was  without  consid- 
eration in  this :  that  defendant  represented  to  plaintiff  that  he  was 
the  owner  of  the  stone  when  they  lay  in  the  quarry  in  the  bed  of 
the  Des  Moines  river,  and  plaintiff  agreed  to  pay  for  the  stone  on 
the  theory  that  defendant  was  the  owner  of  the  same,  but  that  he 
has  since  ascertained  that  defendant  never  had  any  title  to  the  bed  of 
the  river  at  that  place."  Defendant  filed  an  amended  answer  show- 
ing that  he  was  in  possession  of  the  quarry,  and  made  with  plain- 
tiff a  parol  contract  to  the  effect  that  defendant  would  permit  plain- 
tiff to  quarry  stone  in  the  quarry,  and  take  them  out  over  the  land 
of  defendant,  and  deposit  them  on  defendant's  land,  on  condition 
that  he  would  deliver  defendant  15  per  cent,  of  the  stone  quarried, 
and  that  defendant  was  not  to  pay  plaintiff  for  the  stone,  or  for  the 
labor  of  quarrying  them.  The  plaintiff  filed  a  reply  to  this  amended 
answer,  making  his  reply  to  the  original  answer  his  reply  to  this 
amended  answer. 

2.  Under  the  decision  of  this  court  in  this  case  when  here  be- 
fore, defendant  has  no  title  to  the  land  upon  which  the  quarry  is 
situated,  and  no  right  to  the  stone  quarried  therefrom.  Therefore, 
there  was  no  consideration  for  the  contract  under  which  the  stone 
was  delivered  to  defendant  by  plaintiff.  ']2  Iowa  65,  33  N.  W. 
Rep.  366.  That  there  was  a  contract  under  which  plaintiff  delivered 
the  stone  for  wdiich  suit  is  brought  is  admitted  by  plaintiff,  while 
not  admitting  its  terms  and  conditions  as  stated  by  defendant.  But 
he  admits,  in  effect,  that  the  stone  was  received  by  defendant  upon 
a  contract  under  which  he  was  bound  to  pay  for  them.  The  con- 
tract, it  clearly  appears,  w^as  for  future  receipt  of  and  payment 
for  stone  by  plaintiff.  It  was  therefore  an  executory  contract  which 
plaintiff  performed.  He  cannot,  after  having  voluntarily  performed 
it,  and  received  its  fruits,  wnthout  being  disturbed  in  their  enjoy- 
ment, set  up  the  want  of  consideration.  Maxwell  v.  Graves,  59 
Iowa  613,  13  N.  W.  Rep.  758 ;  Bish.  Cont.,  §§■  50,  81. 

The  existence  of  a  contract  and  the  receipt  of  the  stone  by  plain- 
tiff under  it,  is  admitted  by  the  pleading ;  and  there  is  evidence  tend- 
ing to  establish  it.  We  need  not  inquire  as  to  the  terms  and  condi- 
tions. It  is  sufficient  to  know  that  plaintiff  received  the  stone,  and 
used  them  v/ithout  disturbance  under  the  executory  contract,  and 
upon  these  facts  there  can  be  no  doubt,  and  there  may  be  said  to 
be  no  conflict  in  the  evidence.  He  cannot,  as  we  have  seen,  set  up 
want  of  consideration  after  having  received  the  fruit  of  his  ex- 
ecutory contract,  and  never  having  been  deprived  thereof.  Upon 
these  considerations  the  court  below  should  have  entered  judgment 
against  plaintiff.  The  judgment  for  plaintiff,  in  this  view  of  the 
case,  is  wholly  without  the  support  of  evidence. 

Other  questions  in  the  case  need  not  be  considered,  as  the  judg- 


342  MISTAKE   OF    FACT. 

ment  of  the  court  below  must  be  reversed,  and  they  may  not  arise 
in  another  trial.    Reversed. 


5.      IMPROVEMENTS    PUT   BY    MISTAKE   UPON   THE   PROPERTY   OF   ANOTHER. 

WILLIAMS,   Administrator,   v.   GIBBES   and  Another,   Ex- 
ecutors, GIBBES  AND  Another,  Executors,  v. 
WILLIAMS,  Administrator. 

20  How.   (U.  S.)   535-— 1857. 

These  were  cross  appeals  from  the  Circuit  Court  of  the  United 
States  for  the  district  of  Maryland.  In  the  report,  the  first  case  only 
will  be  mentioned ;  namely,  that  of  Williams  against  Oliver's  execu- 
tors. The  case  was  formerly  before  the  court,  and  is  reported  in 
17  How.  239. 

The  decree  was  for  $9,686.33  in  money,  and  $19,215.95  in  stock, 
instead  of  $22,866.94  in  money,  and  $32,847.77  in  stock,  as  claimed 
by  the  appellant. 

Mr.  Justice  Nelson. — This  is  an  appeal  from  a  decree  of  the 
Circuit  Court  of  the  United  States  for  the  district  of  Maryland.  A 
bill  was  filed  in  the  court  below  by  Williams,  the  present  appellant,  to 
recover  of  the  defendants  the  proceeds  of  the  share  of  complainant's 
intestate  in  what  is  known  as  the  Baltimore  Company,  which  had  a 
claim  against  the  Mexican  government,  that  was  awarded  to  it  un- 
der the  treaty  of  1839.  The  proceeds  of  the  share  amounted  to  the 
sum  of  $41,306.41.  The  history  of  the  litigation  to  which  the  award 
under  the  treaty  gave  rise,  in  the  distribution  of  the  fund  among- 
the  claimants  or  the  assignees  composing  the  Baltimore  Company, 
will  be  found  in  the  report  of  four  of  the  cases  which  have  hereto- 
fore come  before  this  court — 11  How.  529;  12  How.  iii ;  14  How. 
610;  17  How.  233,  239.  That  of  Williams  v.  Gibbes,  in  17  How., 
contains  the  report  of  the  present  case  when  formerly  here.  This 
court  then  decided  that  the  claim  of  the  executors  of  Oliver  to  the 
share  of  Williams  was  not  well  founded  ;  that  the  interest  of  Williams 
in  the  same  had  not  been  legally  divested  during  his  lifetime ;  and 
that  his  legal  representative  then  before  the  court  was  entitled  to  the 
proceeds.  The  decree  of  the  court  below  was  reversed,  and  the  cause 
remanded  for  further  proceedings,  in  conformity  with  the  opinion  of 
the  court.  Upon  the  cause  coming  down  before  that  court  on  the 
mandate,  the  defendants,  the  executors  of  Oliver,  set  up  several 
charges  against  the  fund,  which  it  was  claimed  should  be  received 
and  allowed  in  abatement  of  the  amount. 

I.  For  certain  costs  and  expenses  to  which  they  had  been  sub- 
jected in  resisting  suits  instituted  against  it  by  third  parties.    The 


IMPROVEMENTS    UPON    PROPERTY.  343 

history  of  these  suits  will  be  found  in  the  cases  already  referred  to  in 
this  court,  and  need  not  be  stated  at  large. 

2.  For  services  and  expenses  of  Oliver  in  his  lifetime,  in  the 
prosecution  of  the  claim  of  the  Baltimore  Company,  as  its  attorney 
and  agent  before  the  government  of  Mexico,  from  the  year  1825 
down  to  the  time  of  his  death  in  1834. 

The  court  below  allowed  to  the  executors  the  costs  and  expenses 
to  which  they  had  been  subjected  in  defending  the  suits  mentioned, 
and  also  thirty-five  per  cent,  of  the  fund  in  question  for  the  services 
of  Oliver. 

The  case  is  one  in  many  of  its  features  novel  and  peculiar.  James 
Williams,  the  intestate,  and  owner  of  the  share  in  the  Baltimore 
Company,  became  insolvent  in  1819,  and  took  the  benefit  of  the 
insolvent  laws  of  Maryland ;  and  in  1825  the  insolvent  trustee  of 
his  estate  sold  and  assigned  to  Robert  Oliver  the  share  in  question 
in  this  company;  and  from  thence  down  to  the  year  1849,  Oliver  in 
his  lifetime,  and  his  executors  afterwards,  did  not  doubt  but  that 
a  perfect  title  to  the  share  had  passed  by  virtue  of  this  assignment. 
In  that  year  the  Court  of  Appeals  of  Maryland  decided,  in  a  case 
between  the  executors  and  an  insolvent  trustee  of  Williams,  that  no 
title  passed  to  Oliver  by  this  assignment ;  and  as  a  legal  consequence 
it  was  held  by  this  court,  in  17  How.,  that  the  interest  remained  in 
Williams  at  his  death,  and  of  course  passed  to  his  legal  representa- 
tive, the  complainant.  All  the  services  and  expenses,  therefore,  of 
Oliver,  in  his  lifetime,  in  the  prosecution  of  the  claims  of  the  Balti- 
more Company  against  the  government  of  Mexico,  and  of  the  liti- 
gation since  encountered  by  his  executors  in  respect  to  the  share, 
have  resulted  in  securing  the  proceeds  of  the  same  to  the  estate  of 
Williams,  the  original  shareholder.  Williams  in  his  lifetime,  and 
his  legal  representative  since,  down  till  the  fund  was  in  court  await- 
ing distribution,  had  taken  no  steps  for  its  recovery,  nor  had  they 
been  subjected  to  any  expense.  The  v/hole  of  the  services  had  been 
rendered  and  expenses  borne  by  Oliver  and  his  executors  ;  and  the 
question  is  whether,  upon  any  established  principles  of  law  or 
equity,  the  court  below  were  right  in  taking  into  the  account,  in  the 
settlement  between  the  parties,  these  services  and  expenses.  We  are 
of  opinion  they  were. 

By  the  judgment  of  the  Court  of  Appeals  of  Maryland,  Oliver 
was  at  no  time  the  true  owner  of  this  share ;  as,  notwithstanding 
the  assignment  by  the  insolvent  trustee,  it  still  remained  in  Williams. 
Oliver  thereby  became  trustee  instead  of  owner  of  the  share  and  of 
the  proceeds,  as  did  also  his  executors ;  and  they  must  be  regarded 
as  holding  this  relation  to  the  fund  from  their  first  connection  with 
it.  In  that  character  the  executors  have  been  made  accountable  to 
the  estate  of  Williams,  and  have  been  responsible  since  the  fund 
came  into  their  possession  for  all  proper  care  and  management  of 
the  same.  In  defending  these  proceeds,  therefore,  against  suits, 
instituted  by  third  parties  to  recover  them  out  of  the  hands  of  the 
executors,  thev  have  done  no  more  nor  no  less  than  thev  were  bound 


344  MISTAKE   OF    FACT. 

to  do  as  the  proper  guardians  of  the  fund,  if  they  had  known  at 
the  time  the  relation  in  which  they  stood  to  it,  and  that  they  were 
defending  it  for  the  benefit  of  the  estate  of  WilHams,  and  not  for 
that  of  Oliver.  The  services  rendered  and  expenses  borne  could  not 
have  been  dispensed  with,  consistent  with  their  duties  as  trustees. 

But  it  is  said  that  these  suits  were  defended  by  the  executors  while 
claiming  the  fund  in  right  of  their  testator,  and  hence  for  the  sup- 
posed benefit  of  his  estate ;  that  the  defense  was  not  made  in  their 
character  of  trustees,  and  cannot,  therefore,  be  regarded  as  a  ground 
for  charging  the  estate  of  Williams  with  the  costs  of  the  litigation. 
The  answer  to  this  view  is,  that  although  in  point  of  fact  the  ae- 
fense  was  made  under  the  supposition  that  the  fund  belonged  to  the 
estate  of  Oliver,  yet  in  judgment  of  law  it  was  made  by  them  as 
trustees  and  not  owners,  as  subsequently  judicially  ascertained; 
and  as  the  costs  and  expenses  were  properly  incurred  in  the  protec- 
tion and  preservation  of  the  fund,  it  is  but  just  and  equitable  they 
should  be  made  a  charge  upon  it.  The  misapprehension  as  to  the 
right  cannot  change  the  beneficial  character  of  the  expense,  when 
indispensable  to  its  security.  The  duty  of  a  trustee,  whether  of  real 
or  personal  estate,  to  defend  the  title,  at  law  or  in  equity,  in  case  a 
suit  is  brought  against  it,  is  unquestioned ;  and  the  expenses  are 
properly  chargeable  in  his  accounts  against  the  estate,  2  Story,  Eq. 
Jur.,  §  1275. 

Another  principle  which  we  think  applicable  to  this  case  is  to  be 
found  in  a  class  of  cases  where  a  bona  fide  purchaser  for  a  valuable 
consideration,  without  notice,  has  enhanced  the  value  of  the  property 
by  permanent  expenditures,  and  has  been  subsequently  evicted  by 
the  true  owner  on  account  of  some  latent  infirmity  in  the  title.  It 
is  well  settled,  if  the  true  owner  is  obliged  to  come  into  a  court 
of  equity  to  obtain  relief  against  the  purchaser,  the  court  will  first 
require  reasonable  compensation  for  such  expenditures  to  be  made, 
upon  the  principle  that  he  who  seeks  equity  must  first  do  equity. 
2  Story,  Eq.  Jur.,  §§  799,  7996 ;  6  Paige,  403,  404 ;  i  Story  Rep. 

494,  495-  . 

A  kindred  principle  is  also  found  in  a  class  of  cases  where  there 
has  been  a  bona  fide  adverse  possession  of  the  property  tacitly  ac- 
quiesced in  by  the  true  owner.  The  practice  of  a  court  of  equity 
in  such  cases  does  not  permit  an  account  of  rents  and  profits  to  be 
carried  back  beyond  the  filing  of  the  bill.  8  Wheat.  78 ;  27  E.  L.  & 
Eq.  212;  7  Ves.  541  ;  i  Edw.  Ch.  579.  This  principle  is  applicable 
where  the  person  in  possession  is  a  bona  fide  purchaser,  and  there 
has  been  some  degree  of  remissness  or  negligence  or  inattention  on 
the  part  of  the  true  owner  in  the  assertion  of  his  rights. 

Courts  of  equity,  it  would  seem,  do  not  grant  active  relief  in  favor 
of  a  bona  fide  purchaser  making  permanent  meliorations  and  im- 
provements, by  sustaining  a  bill  brought  by  him  against  the  true 
owner,  after  he  has  succeeded  in  recovering  the  property  at  law. 
6  Paige  390,  403,  404,  405 ;  i  Story  R.  495 ;  8  Wheat.  8t,  82.  The 
civil  law  in  this  respect  is  more  liberal,  and  provides  a  remedy  in 


IMPROVEMENTS    UPON    PROPERTY.  345 

behalf  of  the  purchaser,  even  beyond  an  abatement  of  the  rents  and 
profits  for  such  expenditures  as  have  enhanced  the  value  of  the 
estate  (cases  above),  and  indeed  generally  applies  the  principle  in 
favor  of  any  bona  fide  possessor  of  property  who  has  in  good  faith 
expended  his  money  for  its  preservation  or  amelioration  ;  otherwise,  it 
is  said,  the  true  owner  appropriates  unjustly  the  property  of  another 
to  himself.    Touillier,  3  B.,  tit.  4,  c.  i,  ss.  19,  20. 

Now  in  the  case  before  us,  Oliver  in  1825  purchased  this  share 
in  the  Baltimore  Company  for  the  consideration  of  $2,000,  its  full 
value  at  the  time.  The  purchase  was  made  from  the  insolvent  trus- 
tee of  Williams,  whom  all  parties  concerned  believed  had  the  power 
to  sell  and  transfer  the  title.  W^illianis,  down  till  his  death  in  1836, 
set  up  no  claim  to  it ;  nor  did  his  representative  after  his  death,  till 
August,  1852,  when  this  bill  was  filed.  Oliver  and  his  executors 
had  been  in  the  undisturbed  possession,  so  far  as  respects  any  claim 
under  the  present  right,  for  the  period  of  twenty-seven  years.  And 
although  it  may  be  said  in  excuse  for  any  remissness,  and  by  way 
of  avoiding  the  consequences  of  delay,  that  Williams  and  those 
representing  him  had  no  knowledge  of  the  defect  in  the  title  till  the 
decision  of  the  Court  of  Appeals  of  Maryland,  it  may  be  equally 
said,  on  the  other  hand,  that  Oliver  and  his  executors  were  alike 
ignorant  of  it,  and  had  in  good  faith  expended  their  time  and  money 
in  recovering  the  claim  against  the  government  of  Mexico,  and 
afterwards  in  defending  it  against  a  long  and  expensive  litigation. 
It  is  difficult  to  present  a  stronger  case  for  the  protection  of  a 
bona  ade  purchaser  from  loss,  who  has  expended  time  and  money 
in  enhancing  the  value  of  the  subject  of  the  purchase,  or  a  case  in 
which  the  principle  more  justly  applies  that  where  the  true  owner 
seeks  the  aid  of  a  court  of  equity  to  enforce  such  a  title,  the  court 
will  administer  that  aid  only  when  making  compensation  to  the  pur- 
chaser. We  are  therefore  of  opinion  that  the  court  below  was  right 
in  allowing  in  the  account  the  costs  and  fees  paid  to  counsel  by  the 
executors  in  the  defense  of  the  suits. 

In  respect  to  the  35  per  cent,  allowed  for  the  prosecution  of  the 
claim  against  the  government  of  Mexico,  it  stands  in  principle  upon 
the  same  footing  as  other  services  and  expenses  incurred  in  protect- 
ing and  preserving  the  fund  after  possession  w^as  obtained.  The 
amount  of  compensation  depends  upon  the  proofs  in  the  case  as  to 
the  value  of  the  service,  and  which  must  in  a  good  degree  be  gov- 
erned by  the  usual  and  customary  charges  allowed  for  similar  serv- 
ices and  expenses.  As  this  claim  was  prosecuted  with  others  by 
Oliver  when  he  supposed  and  believed  that  he  was  the  owmer,  and 
that  he  was  acting  on  his  own  behalf  and  not  as  trustee  for  Williams. 
the  rate  of  compensation  must  rest  upon  all  the  facts  and  circum- 
stances attending  the  service ;  there  could  have  been  no  agreement 
as  to  the  compensation.  And  for  the  same  reason  it  cannot  be  ex- 
pected that  an  account  of  the  service  and  expenses  was  kept,  so  as 
to  enable  the  court  to  arrive  with  exactness  at  the  proper  sum  to  be 
allowed,  as  might  have  been  required  if  Oliver  had  been  chargeable 


346  MISTAKE   OF    FACT. 

with  notice  of  the  trust.  The  proofs  show  that  OHver  appointed 
agents  to  represent  him  at  the  government  of  Mexico  as  early  as 
March,  1825,  and  that  these  agencies  were  continued  from  thence 
down  till  his  death  in  1834;  and  that  during  all  this  time  he  kept 
up  an  active  correspondence  with  them  and  others,  and  with  our 
ministers  at  Mexico,  and  with  his  own  government,  on  the  subject. 
The  justice  of  these  claims  had  been  acknowledged  by  the  govern- 
ment of  Mexico  as  early  as  1823-24,  but  no  provision  was  made  for 
their  payment.  They  were  regarded  as  of  very  little  value,  from  the 
hopelessness  of  their  recovery ;  and  it  is  perhaps  not  too  much  to 
say,  upon  the  evidence,  that  in  the  absence  of  the  vigorous  and 
efficient  prosecution  of  them  by  Oliver,  they  would  have  been  worth- 
less. In  the  result,  for  the  share  in  question,  which  was  sold  in  1825 
for  $2,000,  there  was  realized  from  the  government  of  Mexico, 
under  the  treaty  of  1839,  the  sum  of  $41,306.41.  The  estate  of 
Williams  has  never  expended  a  dollar  towards  recovering  it,  nor 
has  Oliver  ever  received  any  compensation  for  his  services.  The 
amount  may  seem  large,  but  we  cannot  say  the  court  below  was 
not  warranted  in  allowing  it,  upon  the  proofs  in  the  case  of  the 
great  service  rendered,  and  of  the  customary  charges  in  similar 
cases.     *     *     *     * 

Upon  the  whole,  we  are  satisfied  the  decree  of  the  court  below 
was  right,  and  ought  to  be  affirmed.^ 

Mr.  Justice  Grier  dissented. 


Dillon,  J.,  in  PARSONS  v.  MOSES. 

16  Iowa  440,  444. — 1864. 

By  the  English  and  American  common  law,  the  true  owner  re- 
covers his  land  in  ejectment,  without  liability  to  pay  for  improve- 
ments, which  may  have  been  made  upon  it  by  an  occupant  without 
title.  Improvements  annexed  to  the  freehold,  the  law  deems  part 
of  it,  and  they  pass  with  the  recovery.  Every  occupant  makes  im- 
provements at  his  peril,  even  if  he  acts  under  a  bona  fide  belief  of 
ownership.  2  Kent.  Com.  334.  Such  is  the  rigid  rule  of  the  com- 
mon law.  It  is  founded  upon  the  idea  that  the  owner  should  not 
pay  an  intruder,  or  disseisor,  or  occupant,  for  improvements  which 
he  never  authorized.  It  is  supposed  to  be  founded  in  good  policy, 
inasmuch  as  it  induces  diligence  in  the  examination  of  titles,  and 
prevents  intrusion  upon  and  appropriations  of  the  property  of  others. 

'Accord,  Thomas  v.  Evans,  105  N.  Y.  601  (1887).  In  Williams  v.  Vander- 
bilt.  145  Ills.  238  (1893),  the  court  says  (p.  251):  "When  the  true  owner 
seeks  relief  in  equity,  as,  for  instance,  to  set  aside  a  sale  of  land  on  which 
the  improvements  have  been  made,  or  to  obtain  an  accoimting  for  rents  and 
profits,  he  may  be  required  to  make  compensation  for  the  improvements 
upon  the  principle  that  he  who  seeks  equity  must  do  equity." 


IMPROVEMENTS    UPON    PROPERTY.  347 

Chancery,  borrowing  from  the  civil  law,  made  the  first  innovation 
upon  the  common  law  doctrine.  And  it  came  at  length  to  be  held  in 
equity,  that  when  a  bona  fide  possessor  of  property  (for  equity,  no 
more  than  law,  would  aid  a  mala  fide  possessor)  made  meliorations 
and  improvements  uj)on  it  in  good  faith,  and  under  an  honest  belief 
of  ownership,  and  the  real  owner  was  for  any  reason  compelled  to 
come  into  a  court  of  equity,  that  court  applying  the  familiar  maxim, 
that  he  who  seeks  equity  must  do  equity,  and  adopting  the  civil  law 
rule  of  natural  equity,  would  compel  him  to  pay  for  those  improve- 
ments or  industrial  accessions,  not  the  cost  indeed,  but  so  far  as 
they  were  permanently  beneficial  to  the  estate,  and  enhanced  its 
value.  Story  Eq.  Jurisp.  799a,  799b ;  Putnam  v.  Ritchie,  6  Paige 
390;  Bright  V.  Boyd,  i  Story  Rep.  478,  enriched  by  the  learning 
and  research  of  that  distinguished  jurist;  s.  c.  2  Id.  605;  Greene 
V.  Biddle,  8  Wheat,  yy ;  Willard's  Eq.  312;  Sugd.  on  Vend.,  chap. 
22,  §§  54,  55,  57- 

This  was  the  extent  of  relief  to  bona  fide  possessors.  "I  have 
not,"  says  Chancellor  Walworth,  in  Putnam  v.  Ritchie,  6  Paige 
390,  "been  able  to  find  any  case  either  in  this  country  or  in  Eng- 
land, wherein  the  Court  of  Chancery  has  assumed  to  give  relief  to 
a  complainant  who  has  made  improvements  upon  land,  the  legal 
title  to  which  was  in  the  defendant,  where  there  has  been  neither 
fraud  nor  acquiescence  on  the  part  of  the  latter  after  he  had  knowl- 
edge of  his  legal  rights." 

Courts  of  law  next  modified  the  strict  rule  of  the  common  law 
(which  makes  the  occupant  of  land  which  is  owned  by  another, 
no  matter  how  good  the  faith  of  the  occupant  may  be,  lialile  for  the 
rents  and  profits)  to  this  extent,  viz.,  that  where  such  owner  brought 
his  action  for  mesne  profits,  which  courts  of  law  treated  as  an  equi- 
table action,  the  bona  fide  occupant  might  set  off  or  recoup  the  value 
of  his  permanent  improvements  to  the  extent  of  the  rents  and  profits 
demanded,  but  no  further,    Jackson  v.  Loomis,  4  Cow.  168  ;^  Murray 

_  ^  In  Jackson  v.  Loomis,  an  action  of  trespass  for  mesne  profits  (the  plain- 
tifif  having  in  a  previous  action  of  ejectment  recovered  possession  of  the 
premises),  the  defendant  asked  to  be  allowed  the  value  of  his  improvements. 
The  court  held  :  "There  is  certainly  no  reason,  in  general,  why  the  owner 
of  land  should  be  compelled  to  pay  for  improvements  which  he  neither 
directed  nor  desired,  as  a  condition  on  which  he  is  to  gain  possession  of  his 
property.  But  when  an  occupant  has  taken  possess'ion  under  a  bona  fide 
purchase,  and  made  permanent  improvements,  it  is  very  hard  for  him  to 
lose  both  land  and  improvements.  If  the  plaintiPf  is  not  content  with  ac- 
quiring possession  of  his  property  in  an  improved  condition,  .-.fter  he  has 
neglected  to  assert  his-  title  for  a  number  of  years,  it  is  certainl}-  equitable 
that  the  defendant  should  be  allowed  the  value  of  his  improvements,  made 
in  good  faith,  to  the  extent  of  the  rents  and  profits  clnimcd.  This  view  of 
the  subject  is  fully  supported  by  Green  v.  Biddle  (8  Wheat.  Rep.  81,  82), 
and  the  authorities  there  cited,  especially  Coulter's  case  (s  Co.  Rep.  30). 
Most  clearly  the  defendant  should  not  be  compelled  to  pay  an  enhanced  rent 
in  consequence  of  his  own  improvements."  Accord,  Tonsrue  v.  Nutwell, 
31  Md.  302  (1869).  But  in  Putnam  v.  Tyler,  117  Pa.  570  (1888).  which  was 
an  action  of  ejectment,  without  claim  for  damages  or  mesne  profits,  the  court 
would  not  allow  the  innocent  defendant  the  value  of  his  improvements. 


348  MISTAKE   OF    FACT. 

V.  Governeur,  2  Johns.  Cas.  438;  Green  v.  Biddle,  8  Wheat,  i,  75, 
76;  2  Kent  335,  and  cases  in  note;  Putnam  v.  Ritchie,  6  Paige  404; 
Hilton  V.  Brown,  2  Wash.  C.  C.  R.  165  ;  Davis  v.  Smith,  5  Geo.  274. 
The  equity  of  the  bon-a  fide  possessor  who  had  made  lasting  and 
permanent  improvements  upon  lands  which  turned  out  to  be  an- 
other's was  so  strong  and  persuasive  as  to  force  its  recognition  to 
this  partial  extent  by  courts  of  law,  without  the  aid  of  statute. 


Story,  J.,  in  BRIGHT  v.  BOYD. 

I   Story  478,  494.— 1841. 

The  other  question,  as  to  the  right  of  the  purchaser,  bona  fide 
and  for  a  valuable  consideration,  to  compensation  for  permanent 
improvements  made  upon  the  estate  which  have  greatly  enhanced 
its  value,  under  a  title  w^iich  turns  out  defective,  he  having  no  no- 
tice of  the  defect,  is  one  upon  which,  looking  to  the  authorities,  I 
should  be  inclined  to  pause.  Upon  the  general  principles  of  courts 
of  equity,  acting  ex  aequo  et  bono,  I  own  that  there  does  not  seem 
to  me  any  just  ground  to  doubt  that  compensation,  under  such  cir- 
cumstances, ought  to  be  allowed  to  the  full  amount  of  the  enhanced 
value,  upon  the  maxim  of  the  common  law.  Nemo  debet  lociipletarl 
ex  alterius  incommodo;  or,  as  it  is  still  more  exactly  expressed  in  the 
Digest,  Jure  naturae  aeqitum  est,  neminem  cum  alterius  detrimento 
et  injuria  fieri  locupletiorem.  Dig.  lib.  50,  tit.  17, 1.  206.  I  am  aware 
that  the  doctrine  has  not  as  yet  been  carried  to  such  an  extent  in 
our  courts  of  equity.  In  cases  where  the  true  owner  of  an  estate, 
after  a  recovery  thereof  at  law  from  a  bona  fide  possessor  for  a 
valuable  consideration  without  notice,  seeks  an  account  in  equity 
as  plaintiff,  against  such  possessor,  for  the  rents  and  profits,  it  is 
the  constant  habit  of  courts  of  equity  to  allow  such  possessor  (as 
defendant)  to  deduct  therefrom  the  full  amount  of  all  the  meliora- 
tions and  improvements  which  he  has  beneficially  made  upon  the 
estate ;  and  thus  to  recoup  them  from  the  rents  and  profits.  2  Story, 
Eq.  Jur.,  §§  799a,  799b,  1237,  1238,  1239;  Green  v.  Biddle.  8  Wheat. 
yj,  78,  79,  80,  81.  So,  if  the  true  owner  of  an  estate  holds  only  an 
equitable  title  thereto,  and  seeks  the  aid  of  a  court  of  equity  to  en- 
force that  title,  the  court  will  administer  that  aid  only  upon  the 
terms  of  making  compensation  to  such  bona  fide  possessor  for  the 
amount  of  his  meliorations  and  improvements  of  the  estate,  bene- 
ficial to  the  true  owner.  See  also  2  Story,  Eq.  Jur.,  §  799b,  and  note ; 
Id.,  §§  1237,  1238.  In  each  of  these  cases  the  court  acts  upon  an  old 
and  established  maxim  in  its  jurisprudence,  that  he  who  seeks  equity 
must  do  efjuity.    Ibid. 

But  it  has  been  sup]ioscd  that  courts  of  equity  do  not,  and  ought 
not,  to  go  further,  and  to  grant  active  relief  in  favor  of  such  a 


IMPROVEMENTS    UPON    PROPERTY.  349 

bona  Ude  possessor  makinj^  permanent  meliorations  and  improve- 
ments, by  sustaining  a  bill  brought  by  him  therefor  against  the 
true  owner  after  he  has  recovered  the  premises  at  law.  I  find 
that  Mr.  Chancellor  Walworth,  in  Putnam  v.  Ritchie,  6  Paige 
390,  403,  404,  405,  entertained  this  opinion,  admitting  at  the  same 
time  that  he  could  find  no  case  in  England  or  America  where  the 
point  had  been  expressed  or  decided  either  way.  Now,  if  there 
be  no  authority  against  the  doctrine,  I  confess  that  I  should  be  most 
reluctant  to  be  the  first  judge  to  lead  to  such  a  decision.  It  appears 
to  me,  speaking  with  all  deference  to  other  opinions,  that  the  denial 
of  all  compensation  to  such  a  bona  Ude  purchaser  in  such  a  case, 
where  he  has  manifestly  added  to  the  permanent  value  of  an  estate 
by  his  meliorations  and  improvements,  without  the  slightest  sus- 
picion of  any  infirmity  in  his  own  title,  is  contrary  to  the  first  prin- 
ciples of  equity.  Take  the  case  of  a  vacant  lot  in  a  city,  where  a 
bona  Ude  purchaser  builds  a  house  thereon,  enhancing  the  value  of 
the  estate  to  ten  times  the  original  value  of  the  land,  under  a  title 
apparently  perfect  and  complete ;  is  it  reasonable  or  just  that  in  such 
a  case  the  true  owner  should  recover  and  possess  the  whole  without 
any  compensation  whatever  to  the  bona  fide  purchaser?  To  me  it 
seems  manifestly  unjust  and  inequitable  thus  to  appropriate  to  one 
man  the  property  and  money  of  another,  who  is  in  no  default.  The 
argument,  I  am  aware,  is  that  the  moment  the  house  is  built  it  be- 
longs to  the  owner  of  the  land  by  mere  operation  of  law ;  and  that 
he  may  certainly  possess  and  enjoy  his  own.  But  this  is  merely  stat- 
ing the  technical  rule  of  law,  by  v^^hich  the  true  owner  seeks  to  hold 
what,  in  a  just  sense,  he  never  had  the  slightest  title  to,  that  is,  the 
house.  It  is  not  answering  the  objection,  but  merely  and  dryly  stat- 
ing that  the  law  so  holds.  But  then,  admitting  this  to  be  so,  does  it 
not  furnish  a  strong  ground  why  equity  should  interpose  and  grant 
relief?  I  have  ventured  to  suggest  that  the  claim  of  the  bona  fide 
purchaser  under  such  circumstances  is  founded  in  equity.  I  think 
it  founded  in  the  highest  equity ;  and  in  this  view  of  the  matter  I  am 
supported  by  the  positive  dictates  of  the  Roman  law.     *     *     *     *i 

^  Later,  in  deciding  this  same  case  (in  2  Story  605,  607),  the  same  judge 
says:  "I  have  reflected  a  good  deal  upon  the  present  subject;  and  the  views 
expressed  by  me  at  the  former  hearing  of  this  case,  reported  in  i  Story  478, 
et  seq.,  remain  unchanged ;  or  rather,  to  express  myself  more  accurately, 
have  been  thereby  strengthened  and  confirmed.  My  judgment  is  that  the 
plaintiff  is  entitled  to  the  full  value  of  all  the  improvements  and  meliora- 
tions which  he  has  made  upon  the  estate,  to  the  extent  of  the  additional 
value  which  they  have  conferred  upon  the  land.  It  appears  by  the  Master's 
report  that  the  present  value  of  the  land  with  the  improvements  and 
meliorations  is  $1,000;  and  that  the  present  value  of  the  land  without  these 
improvements  and  meliorations  is  but  $25 ;  so  that  in  fact  the  value  of  the 
landis  increased  thereby  $975.  This  latter  sum,  in  my  judgment,  the  plain- 
tiff is  entitled  to,  as  a  lien  and  charge  on  the  land  in  its  present  condi- 
tion. 1  wish,  in  coming  to  this  conclusion,  to  be  distinctly  understood  as 
affirming  and  maintaining  the  broad  doctrine,  as  a  doctrine  of  equity,  that, 
so  far  as  an  innocent  purchaser  for  a  valuable  consideration,  without 
notice  of  any  infirmity  in  his  title,  has,  by  his  improvements  and  meliora- 


A 


350  MISTAKE   OF    FACT. 


ISLE  ROYALE  MINING  COMPANY  v.  JOHN  HERTIN  AND 
MICHAEL  HERTIN. 

37  Mich.  332.— 1877. 

Trover  and  indebitatus  assumpsit. 

CooLEY,  C.  J. — The  parties  to  this  suit  were  owners  of  adjoining 
tracts  of  timbered  lands.  In  the  winter  of  1873-74  defendants  in 
error,  who  were  plaintiffs  in  the  court  below,  in  consequence  of  a 
mistake  respecting  the  actual  location,  went  upon  the  lands  of  the 
mining  company  and  cut  a  quantity  of  cord  wood,  which  they 
hauled  and  piled  on  the  bank  of  Portage  Lake.  The  next  spring 
the  wood  was  taken  possession  of  by  the  mining  company,  and  dis- 
posed of  for  its  own  purposes.  The  wood  on  the  bank  of  the  lake 
was  worth  $2.87^  per  cord,  and  the  value  of  the  labor  expended 
by  plaintiffs  in  cutting  and  placing  it  there  was  $1.87^  per  cord. 
It  was  not  clearly  shown  that  the  mining  company  had  knowledge 
of  the  cutting  and  hauling  by  the  plaintiffs  while  it  was  in  progress. 
After  the  mining  company  had  taken  possession  of  the  w^ood,  plain- 
tiffs brought  this  suit.  The  declaration  contains  two  special  counts, 
the  first  of  which  appears  to  be  a  count  in  trover  for  the  conversion 
of  the  wood.  The  second  is  as  follows : 

"And  for  that  whereas  also,  the  said  plaintiff,  Michael  Hertin, 
was  in  the  year  1874  and  1875,  the  owner  in  fee  simple  of  cer- 
tain lands  in  said  county  of  Houghton,  adjoining  the  lands  of  the 
said  defendant,  and  the  said  plaintiffs  were,  during  the  years  last 
aforesaid,  engaged  as  co-partners  in  cutting,  hauling,  and  selling 
wood  from  said  lands  of  said  Michael  Hertin,  and  by  mistake  en- 
tered upon  the  lands  of  the  said  defendant,  which  lands  adjoined 
the  lands  of  the  said  plaintiff,  ]\lichael  Hertin,  and  under  the  belief 
that  said  lands  were  the  lands  of  the  said  plaintiff,  Michael  Hertin, 
cut  and  carried  away  therefrom  a  large  amount  of  wood,  to  wit: 
one  thousand  cords,  and  piled  the  same  upon  the  shore  of  Portage 
Lake,  in  said  county  of  Houghton,  and  incurred  great  expense,  and 

tions,  added  to  the  per.manent  value  of  the  estate,  he  is  entitled  to  a  full 
remuneration,  and  that  such  increase  of  value  is  a  lien  and  charge  on  the 
estate,  which  the  absolute  owner  is  bound  to  discharge  before  he  ia  to  be 
restored  to  his  original  rights  in  the  land.  This  is  the  clear  result  of  the 
Roman  law ;  and  it  has  the  .most  persuasive  equity,  and,  I  may  add,  common 
sense  and  common  justice,  for  its  foundation.  The  Betterment  Acts  (as 
they  are  commonly  called)  of  the  States  of  Massachusetts  and  Maine  and 
of  some  other  states  are  founded  upon  the  like  equity  and  were  manifestly 
intended  to  support  it,  even  in  suits  at  law  for  the  recovery  of  the  estate." 

Accord,  Union  Hall  Assoc,  v.  Morrison,  39  Md.  281  (1S73)  ;  Martin  v. 
Atkinson,  7  Ga.  228  (1849).  Approved,  Hatcher  v.  Rriggs,  6  Ore.  31  (1876)  ; 
and  see  also  Thomas  v.  Thomas'  Ex'r.  16  R.  Mon.   (Ky.)  420  (1855). 

In  many  states  provision  is  made  by  statute  for  recovering  for  improve- 
ments put  upon  land  by  one  supposing  himself  the  owner.  For  a  discussion 
of  such  statutes  see,  for  example,  Brown  v.  Storm,  4  Vt.  37  (1831),  and 
Parsons  v.  Moses,  16  la.  440  (1864). 


IMPROVEMENTS    UPOX    PROPERTY.  35 1 

paid,  laid  out,  and  expended  a  large  amount  of  money  in  and  about 
cutting  and  splitting,  hauling  and  piling  said  wood,  to  wit :  the 
sum  of  two  thousand  dollars ;  and  afterward,  to  wit :  on  the  first 
day  of  June,  A.  D.  1875,  in  the  county  of  Houghton  aforesaid,  the 
said  defendant,  with  force  and  arms,  and  without  any  notice  to  or 
consent  of  said  plaintiffs,  seized  the  said  wood  and  took  the  same 
from  their  possession  and  kept,  used,  and  disposed  of  the  same  for 
its  own  use  and  purposes ;  and  the  said  plaintiffs  aver  that  the  labor 
so  as  aforesaid  done  and  performed  by  them,  and  the  expense  so  as 
aforesaid  incurred,  laid  out,  and  expended  by  them  in  cutting,  split- 
ting, hauling  and  piling  said  wood,  amounting  as  aforesaid  to  the 
value  of  two  thousand  dollars,  increased  the  value  of  said  wood  ten 
times  and  constituted  the  chief  value  thereof,  by  reason  whereof 
the  said  defendant  then  and  there  became  liable  to  pay  to  the  said 
plaintiff  the  value  of  the  labor  so  as  aforesaid  expended  by  them 
upon  said  wood  and  the  expense  so  as  aforesaid  incurred,  laid  out, 
and  expended  by  them  in  cutting,  splitting,  hauling,  and  piling  said 
wood,  to  wit :  the  said  sum  of  two  thousand  dollars ;  and  being  so 
liable,  the  said  defendant  in  consideration  thereof,  afterward,  to  wit: 
on  the  same  day  and  year  last  aforesaid  and  at  the  place  aforesaid, 
undertook,  and  then  and  there  faithfully  promised  the  said  plain- 
tiffs to  pay  unto  the  said  plaintiffs  the  said  sum  of  two  thousand 
dollars,  and  the  interest  thereon." 

The  circuit  judge  instructed  the  jury  as  follows : 
"If  you  find  that  the  plaintiffs  cut  the  wood  from  defendant's 
land  by  mistake  and  without  any  wilful  negligence  or  wrong,  I  then 
charge  you  that  the  plaintiffs  are  entitled  to  recover  from  the  de- 
fendant the  reasonable  cost  of  cutting,  hauling,  and  piling  the  same." 
This  presents  the  only  question  it  is  necessary  to  consider  on  this 
record.   The  jury  returned  a  verdict  for  the  plaintiffs. 

Some  facts  appear  by  the  record  which  might  perhaps  have  war- 
ranted the  circuit  judge  in  submitting  to  the  jury  the  question 
whether  the  proper  authorities  of  the  mining  company  w^ere  not 
aware  that  the  wood  was  being  cut  by  the  plaintiffs  under  an  honest 
mistake  as  to  their  rights,  and  were  not  placed  by  that  knowledge 
under  obligation  to  notify  the  plaintiffs  of  their  error.  But  as  the 
case  was  put  to  the  jury,  the  question  presented  by  the  record  is  a 
narrow  question  of  law,  which  may  be  stated  as  follows :  whether, 
where  one  in  an  honest  mistake  regarding  his  rights  in  good  faith 
performs  labor  on  the  property  of  another,  the  benefit  of  which  is 
appropriated  by  the  owner,  the  person  performing  such  labor  is  not 
entitled  to  be  compensated  therefor  to  the  extent  of  the  benefit  re- 
ceived by  the  owner  therefrom  ?  The  affirmative  of  this  proposition 
the  plaintiffs  undertook  to  support,  having  first  laid  the  foundation 
for  it  by  showing  the  cutting  of  the  wood  under  an  honest  mistake 
as  to  the  location  of  their  land,  the  taking  possession  of  the  wood 
afterward  by  the  mining  company,  and  its  value  in  the  condition 
in  Avhich  it  then  was  and  where  it  was,  as  compared  wath  its  value 
standing  in  the  woods. 


352  MISTAKE   OF    FACT. 

We  understand  it  to  be  admitted  by  the  plaintiffs  that  no  author- 
ity can  be  found  in  support  of  the  proposition  thus  stated.  It  is 
conceded  that  at  the  common  law  when  one  thus  goes  upon  the  land 
of  another  on  an  assumption  of  ownership,  though  in  perfect  good 
faith  and  under  honest  mistake  as  to  his  rights,  he  may  be  held  re- 
sponsible as  a  trespasser.  His  good  faith  does  not  excuse  him  from 
the  payment  of  damages,  the  law  requiring  him  at  his  peril  to  as- 
certain what  his  rights  are,  and  not  to  invade  the  possession,  actual 
or  constructive,  of  another.  If  he  cannot  thus  protect  himself  from 
the  payment  of  damages,  still  less,  it  would  seem,  can  he  establish 
in  himself  any  affirmative  rights,  based  upon  his  unlawful,  though 
unintentional  encroachment  upon  the  rights  of  another.  Such  is  un- 
questionably the  rule  of  the  common  law,  and  such  it  is  admitted  to 
be. 

It  is  said,  however,  that  an  exception  to  this  rule  is  admitted  under 
certain  circumstances,  and  that  a  trespasser  is  even  permitted  to 
make  title  in  himself  to  the  property  of  another,  where  in  good  faith 
he  has  expended  his  own  labor  upon  it,  under  circumstances  which 
would  render  it  grossly  unjust  to  permit  the  other  party  to  appro- 
priate the  benefit  of  such  labor.  The  doctrine  here  invoked  is  the 
familiar  one  of  title  by  accession,  and  though  it  is  not  claimed  that 
the  present  case  is  strictly  within  it,  it  is  insisted  that  it  is  within 
its  equity,  and  that  there  would  be  no  departure  from  settled  prin- 
ciples in  giving  these  plaintiffs  the  benefit  of  it. 

The  doctrine  of  title  by  accession  is  in  the  common  law  as  old  as 
the  law  itself,  and  was  previously  known  in  other  systems.  Its  gen- 
eral principles  may  therefore  be  assumed  to  be  well  settled.  A  wil- 
ful trespasser  who  expends  his  money  or  labor  upon  the  property 
of  another,  no  matter  to  what  extent,  will  acquire  no  property  there- 
in, but  the  owner  may  reclaim  it  so  long  as  its  identity  is  not  changed 
by  conversion  into  some  new  product.  Indeed  some  authorities  hold 
that  it  may  be  followed  even  after  its  identity  is  lost  in  a  new 
product ;  that  grapes  may  be  reclaimed  after  they  have  been  con- 
verted into  wine,  and  grain  in  the  form  of  distilled  liquors.  Silsbury 
V.  McCoon,  3  N.  Y.  379.  See  Riddle  v.  Driver,  12  Ala.  590.  And 
while  other  authorities  refuse  to  go  so  far,  it  is  on  all  hands  con- 
ceded that  where  the  appropriation  of  the  property  of  another  was 
accidental  or  through  mistake  of  fact,  and  labor  has  in  good  faith 
been  expended  upon  it  which  destroys  its  identity,  or  converts  it 
into  something  substantially  different,  and  the  value  of  the  original 
article  is  insignificant  as  compared  with  the  value  of  the  new  pro- 
duct, the  title  of  the  property  in  its  converted  form  must  be  held  to 
pass  to  the  person  by  whose  labor  in  good  faith  the  change  has  been 
wrought,  the  original  owner  being  permitted,  as  his  remedy,  to  re- 
cover the  value  of  the  article  as  it  was  before  the  conversion.  This 
is  a  thoroughly  equitable  doctrine,  and  its  aim  is  so  to  adjust  the 
rights  of  the  parties  as  to  save  both,  if  possible,  or  as  nearly  as  pos- 
sible, from  any  loss.  r>ut  where  the  identity  of  the  original  article 
is  susceptible  of  being  traced,  the  idea  of  a  change  in  the  property 


IMPROVEMENTS    UPON    PROPERTY.  353 

is  never  admitted,  unless  the  value  of  that  which  has  been  expended 
upon  it  is  sufficiently  great,  as  compared  with  the  original  value, 
to  render  the  injustice  of  permitting  its  appropriation  by  the  origi- 
nal owner  so  gross  and  palpable  as  to  be  apparent  at  the  first  blush. 
Perhaps  no  case  has  gone  further  than  Wetherbee  v.  Green,  22 
Mich.  311,  in  which  it  was  held  that  one  who,  by  unintentional  tres- 
pass, had  taken  from  the  land  of  another  young  trees  of  the  value 
of  $25,  and  converted  them  into  hoops  w'orth  $700,  had  thereby 
made  them  his  own,  though  the  identity  of  trees  and  hoops  was 
perfectly  capable  of  being  traced  and  established. 

But  there  is  no  such  disparity  in  value  between  the  standing  trees 
and  the  cord  wood  in  this  case  as  was  found  to  exist  between  the 
trees  and  the  hoops  in  Wetherbee  v.  Green.  The  trees  are  not  only 
susceptible  of  being  traced  and  identified  in  the  wood,  but  the  dif- 
ference in  value  between  the  two  is  not  so  great  but  that  it  is  con- 
ceivable the  owner  may  have  preferred  the  trees  standing  to  the 
wood  cut.  The  cord  wood  has  a  higher  market  value,  but  the  owner 
may  have  chosen  not  to  cut  it,  expecting  to  make  some  other  use  of 
the  trees  than  for  fuel,  or  anticipating  a  considerable  rise  in  value 
if  they  were  allowed  to  grow.  It  cannot  be  assumed  as  a  rule  that 
a  man  prefers  his  trees  cut  into  cord  wood  rather  than  left  standing, 
and  if  his  right  to  leave  them  uncut  is  interfered  v/ith  even  by  mis- 
take, it  is  manifestly  just  that  the  consequences  should  fall  upon  the 
person  committing  the  mistake,  and  not  upon  him.  Nothing  could 
more  encourage  carelessness  than  the  acceptance  of  the  principle 
that  one  who  b}'  mistake  performs  labor  upon  the  property  of  an- 
other should  lose  nothing  by  his  error,  but  should  have  a  claim  upon 
the  owner  for  remuneration.  Why  should  one  be  vigilant  and  care- 
ful of  the  rights  of  others,  if  such  were  the  law  ?  Whether  mistaken 
or  not  is  all  the  same  to  him,  for  in  either  case  he  has  employment 
and  receives  his  remuneration  ;  while  the  inconveniences,  if  any,  are 
left  to  rest  with  the  innocent  owner.  Such  a  doctrine  offers  a 
premium  to  heedlessness  and  blunders,  and  a  temptation  by  false 
evidence  to  give  an  intentional  trespass  the  appearance  of  an  inno- 
cent mistake. 

A  case  could  seldom  arise  in  which  the  claim  to  compensation 
could  be  more  favorably  presented  by  the  facts  than  it  is  in  this ; 
since  it  is  highly  probable  that  the  defendant  would  suffer  neither 
hardship  nor  inconvenience  if  com.pelled  to  pay  the  plaintiffs  for 
their  labor.  But  a  general  principle  is  to  be  tested,  not  by  its  opera- 
tion in  an  individual  case,  but  by  its  general  workings.  If  a  me- 
chanic employed  to  alter  over  one  man's  dwelling-house,  shall  by 
mistake  go  to  another  which  happens  to  be  unoccupied,  and  before 
his  mistake  is  discovered,  at  a  large  expenditure  of  labor  shall  thor- 
oughly overhaul  and  change  it,  will  it  be  said  that  the  owner,  who 
did  not  desire  his  house  disturbed,  must  either  abandon  it  alto- 
gether, or  if  he  takes  possession,  must  pay  for  labor  expended  upon 
it  which  he  neither  contracted  for,  desired,  nor  consented  to?  And 
Woodruff's  Cases — 23 


354  MISTAKE   OF    FACT. 

if  SO,  what  bounds  can  be  prescribed  to  which  the  appHcation  of 
this  doctrine  can  be  limited?  The  man  who  by  mistake  carries  off 
the  property  of  another  will  next  be  demanding  payment  for  the 
transportation ;  and  the  only  person  reasonably  secure  against  de- 
mands he  has  never  assented  to  create,  will  be  the  person  who, 
possessing  nothing,  is  thereby  protected  against  anything  being  acci- 
dentally improved  by  another  at  his  cost  and  to  his  ruin. 

The  judgment  of  the  circuit  court  must  be  reversed,  with  costs 
and  a  new  trial  ordered. 

The  other  justices  concurred.^ 


6.      PERFORMANCE   OF   A    WRITTEN    CONTRACT,    THE    CONTRACT    BEING    FOUNDED   ON 

MISTAKE. 

BOYCE  V.  WILSON. 

32   Md.    122. — 1869. 

Maulsby,  J. — This  action  is  to  recover  money  paid  by  mistake 
under  a  count  for  money  had  and  received.  At  the  trial  the  plain- 
tiff offered  two  prayers  which  were  rejected,  and  the  court  granted 
the  following  prayer  of  the  defendant :  "That  there  is  no  sufficient 
evidence  to  show  such  a  mistake  in  the  contract  of  April  15,  1864, 
and  the  deed  of  Wilson  to  Boyce  and  Rieman,  as  will  entitle  the 
plaintiff  to  recover  in  this  action,"  and  the  plaintiff  appealed. 

^  "The  Supreme  Court  of  North  CaroHna,  in  Gaskins  v.  Davis,  20  S.  E.  R. 
188  [115  N.  C.  85  (1894)],  decides  that  one  who  cuts'  logs  on  another's  land 
by  mistake  cannot,  when  they  are  retaken  by  the  lawful  owner,  claim  com- 
pensation for  their  increase  in  value  caused  by  his  having  transported  them 
to  market.  The  action  was  by  the  lawful  owner  for  damages  for  cutting 
other  logs,  and  defendant  sought  to  counter-claim.  Had  the  mistaken  wrong- 
doer sutificiently  changed  the  nature  or  enhanced  the  value  of  the  logs  to 
acquire  title  to  them  lay  accession,  the  measure  of  damages  would  have  been 
limited  to  the  value  of  the  logs  at  the  time  of  the  conversion.  The  same  rule 
would  have  applied  in  many  jurisdictions  if  there  had  been  no  accession, 
and  the  real  owner  had  brought  trover  for  the  logs  instead  of  retaking  them. 
In  both  cases  defendant  would,  in  effect,  have  been  compensated  for  the  in- 
crease in  value  which  his  labor  had  brought  about.  It  seems  unfortunate 
that  in  the  single  case  where  there  has  been  no  accession,  and  the  logs  are 
retaken  by  the  owner,  the  right  to  compensation  should  be  denied.  In  Isle 
Royalc  Mining  Co.  v.  Hertin.  2)7  JMich.  332,  a  similar  log  case,  the  claim 
was  denied  because  to  allow  it  would  be  to  offer  a  'premium  to  heedlessness 
and  blunders.'  The  rule  of  damages  in  accession  and  trover  seems  equally 
lenient  to  blunderers,  and  has  not  been  found  disastrous  in  practice.  It  is 
rather  difficult  to  distinguish  the  cases  on  principle  from  those  in  which  a 
right  to  compensation  in  equity  has  been  allowed  for  improvoments  to  land 
made  under  a  mistaken  belief  of  ownership  (Albea  v.  Griffin,  2  Dev.  &  B.  Eq. 
9  (N.  C.)  ;  Rodman,  J.,  in  Potter  v.  Mardre,  74  N.  C.  40).  A  decision  to 
much  the  same  effect  was  made  in  Bright  v.  Boyd,  i  Story  478;  2  Story 
608,  and  see  Keener,  Quasi-Contracts,  385,  386.  The  analogy  was  noticed  by 
the  court  in  the  principal  case." — Note  in  8  Harvard  Laiv  Review,  356. 


WRITTEN    CONTRACTS.  355 

In  the  view  which  we  take  of  the  case,  we  do  not  deem  it  material 
to  determine  whether  the  defendant's  prayer,  in  the  terms  used,  was 
properly  granted  or  not.  The  contract  offered  in  evidence  by  the 
plaintiff  is  a  written  contract,  in  which  the  consideration  expressed 
is  $90,322,  and  that  sum  was  paid  by  appellant  to  appellee.  The 
ground  of  the  appellant  in  this  suit  is  that  the  consideration,  which 
ought  to  have  been  ex])resscd  in  the  written  contract,  was  $81,250, 
and  that  he  paid  $9,072  too  much,  by  reason  of  the  fact  that  the 
written  contract  did  not  contain  the  true  contract  between  the  par- 
ties to  it. 

He  was  permitted  by  the  court  below  to  offer  parol  evidence, 
and  to  prove  that  the  written  contract  was  intended  to  embody  a 
verbal  agreement  previously  made.  His  counsel  asked  him,  testify- 
ing as  a  witness,  "what  the  agreement  was  which  resulted  in  the 
written  contract,  and  whether  there  was  any  mistake  in  the  amount 
of  consideration  stated  in  the  contract?"  And  again,  whether  the 
consideration  stated  in  the  written  contract  "was  the  true  consider- 
ation for  the  property  agreed  to  be  conveyed,"  or  whether  there  was 
any  mistake,  and  if  so,  what  it  was,  and  how  it  arose?  The  witness 
replied,  in  substance,  that  he  and  the  appellee  had  agreed  by  parol 
that  he  was  to  purchase  from  the  appellee  certain  real  estate,  and 
mining  stocks,  at  certain  valuations,  and  that,  after  negotiating  for 
some  time,  they  finally  made  a  calculation  of  the  amount  which  he 
was  to  pay  for  the  same,  and  that  the  sum  ascertained  by  the  calcu- 
lation was  $90,322,  that  afterward  the  agreement  was  reduced  to 
writing,  and  embodied  that  sum  as  the  consideration,  and  that  the 
contract  offered  in  evidence  was  that  writing,  and  when  it  was  exe- 
cuted he  was  not  aware  that  the  said  sum  was  not  the  correct  con- 
sideration, but  that  some  time  afterward  he  discovered  that  the  cal- 
culation had  been  made  on  an  erroneous  basis,  and  that  the  sum 
which  ought  to  have  been  expressed  in  the  written  contract  was 
$81,250,  that  before  this  discovery  was  made  by  him  the  real  estate 
and  stocks  had  been  conveyed  and  transferred  to  him,  and  he  had 
paid  the  full  sum  mentioned  in  the  written  contract.  The  alleged 
mistake  was  in  the  calculation  made  before  the  written  contract, 
and  was  carried  into  that  contract. 

Can  the  parol  evidence  vary  the  written  contract,  by  striking 
therefrom  the  consideration  expressed  in  it,  and  inserting  in  its 
stead  another  reduced  consideration  ?  The  plaintiff  has  made  no  mis- 
take which  a  court  of  law  can  correct,  if  he  has  paid  only  that  sum 
which  his  contract  obliged  him  to  pay.  He  cannot  recover  at  law  a 
sum  paid  by  mistake,  unless  that  sum  were  over  and  above  what  he 
had  contracted  to  pay.  *  *  *  *  The  written  contract  may  not 
have  been  in  accordance  with  the  intention  of  the  parties.  It  may 
have  expressed,  by  mistake,  one  consideration,  when  the  real  inten- 
tion out  of  mind  at  the  moment  of  its  execution  was  that  it  should 
have  expressed  another.  But,  whatever  may  have  been  the  mistake, 
or  how  produced,  it  can  find  no  recognition  until  the  written  con- 
tract shall  have  been  reformed  and  made  to  conform  to  the  inten- 


356  MISTAKE   OF    FACT. 

tion  of  the  parties,  and  this  a  court  of  law  cannot  effect.    A  court 
of  equity  alone  can  reform  a  written  contract. 

When  the  court  of  appeals,  in  Murphy  v.  Barron,  i  Harris  &  Gill 
258,  said,  "the  action  for  money  had  and  received  is  an  equitable 
action,  and  equally  as  remedial  in  its  effects  as  a  bill  in  equity,"  it 
did  not  mean  to  be  understood  as  obliterating  any  of  the  well-de- 
fined lines  of  demarcation  which  separate  the  jurisdiction  of  courts 
of  law  and  equity.  It  did  not  mean  that  an  action  of  assumpsit  can 
be  founded  on  anything  else  than  contract,  express  or  implied.  It 
meant  only,  that  contracts  to  repay  money  received,  through  fraud 
or  mistake,  would  be  implied,  in  a  spirit  of  liberal  and  generous 
justice,  when  the  rigid  rules  of  law  did  not  forbid.  The  illustrations 
put,  in  the  court's  opinion,  explain  it.  As,  "where  money  has  been 
paid  on  a  consideration  which  has  failed."  "That  the  extending 
those  actions  depends  on  the  notion  of  fraud."  "If  a  man  takes  an- 
other's money  to  do  a  thing,  and  refuses  to  do  it,  it  is  a  fraud ;  and 
it  is  at  the  election  of  the  party  injured  either  to  affirm  the  agree- 
ment by  bringing  an  action  for  the  non-performance  of  it,  or  to  dis- 
affirm the  agreement  ab  initio,  by  reason  of  the  fraud,  and  bring  an 
action  for  money  had  and  received  to  his  use."  But  the  court  did 
not  intend  to  say  that,  in  this  action,  settled  rules  of  law  could  be 
abrogated ;  that  a  written  contract  could  be  shown,  by  parol,  to  be 
different  from  the  import  of  its  terms,  or  that  the  rules  regulating 
the  force  and  effect  of  evidence  could  be  interfered  with  or  altered.^ 

The  result  from  these  views  being  that  the  plaintiff  cannot  recover 
in  a  court  of  law,  it  is  not  material  to  determine  whether  or  not  the 
prayer,  as  offered,  was  properly  granted,  because,  even  if  it  were 
erroneous,  the  appellant  has  sustained  no  injury.  He  could  derive 
no  benefit  from  a  reversal,  and  to  order  a  new  trial  would  be  nuga- 
tory, because  he  could  not  recover. 

Under  the  views  expressed,  the  plaintiff's  prayers  were  properly 
rejected.   Therefore,  this  court  will  not  reverse  the  judgment. 

Judgment  affirmed,  j^ 


HOWES  V.  BARKER. 

3  Johns.  (N.  Y.)  506.— 1808. 

Tins  was  an  action  of  assumpsit.  The  declaration  contained  three 
counts.  I.  For  money  had  and  received  to  the  use  of  the  plaintiff. 
2.  For  money  paid  out  and  expended.  3.  For  money  lent  and  ad- 
vanced. The  defendant  ])leaded  non  assumpsit.  The  cause  was  tried 
before  Mr.  Justice  Thomp-Sgn,  at  the  Dutchess  circuit,  in  Septem- 
ber, 1807. 

The  plaintiff's  counsel,  on  opening  the  cause  to  the  jury,  stated, 

*  But  see  Miiichin  v.  Minchin,  reported  herein  at  p.  (^51. 


WRITTEN    CONTRACTS.  357 

that  the  plaintiff  and  defendant,  on  the  20th  of  August,  1798,  exe- 
cuted articles  of  agreement,  under  their  hands  and  seals,  by  which 
the  defendant  agreed  to  sell  and  convey  to  the  plaintiff,  for  the  sum 
of  nine  pounds  per  acre,  a  certain  parcel  of  land,  mentioned  in  the 
agreement,  and  covenanted  to  execute  a  good  warranty  deed  for  the 
same,  on  or  before  the  ist  day  of  April  following,  on  the  plaintiff's 
paying  him  for  the  land,  at  the  terms  agreed  upon ;  that  the  defend- 
ant, afterward,  on  the  ist  of  April,  1799,  executed  a  deed  to  the 
plaintiff,  in  the  usual  form,  and  with  the  usual  covenants,  in  which 
the  premises  conveyed  were  described  as  containing  275  acres,  ex- 
clusive of  any  allowance  for  highways,  and  the  plaintiff  paid  to  the 
defendant  $6,187.50,  being  the  price  of  275  acres  .at  £9  per  acre; 
that  the  premises  mentioned  in  the  agreement,  and  described  and 
conveyed  in  the  deed,  were  afterwards  found  to  contain  only  263 
acres,  there  being  a  deficiency  of  twelve  acres ;  by  means  of  which 
deficiency  in  the  supposed  quantity  of  the  land  the  defendant  had 
paid  by  mistake  $270  over  and  above  the  value  of  the  land,  at  the  rate 
agreed  to  be  paid  for  the  same ;  to  recover  which  sum,  with  the  in- 
terest thereon,  the  present  action  was  brought.  Upon  this  statement 
of  the  case,  the  defendant  moved  for  a  non-suit,  on  the  ground  that 
the  action  was  not  maintainable,  and  the  judge  was  of  opinion,  on 
the  facts  disclosed,  that  no  action  could  be  sustained. 

The  plaintiff  then  oft'ered  to  prove  that  at  the  time  the  deed  was 
executed,  the  defendant  agreed  with  the  plaintiff,  that  the  quantity 
of  acres  conveyed  should  be  the  subject  of  future  inquiry,  and  that 
the  sum  paid  should  be  rectified  by  the  actual  quantity  of  land ;  but 
this  evidence  was  overruled  by  the  judge. 

The  plaintiff  then  offered  to  prove  that  the  defendant,  after  the 
execution  of  the  deed,  had  acknowledged  the  mistake  and  had  prom- 
ised to  refund  the  money,  so  received  by  mistake,  and  for  that  pur- 
pose produced  a  letter  written  by  the  defendant  to  the  plaintiff, 
which  was  admitted  and  read,  in  which  he  says,  'T  will  come  down 
next  week,  and  early  enough  in  the  day  to  send  for  Mr.  Baldwin. 
All  I  want  is  to  be  convinced  of  the  quantity  of  land,  and  Baldwin 
says  he  can  do  it."  The  judge  being  of  opinion  that  neither  the  facts 
stated,  nor  the  evidence  produced,  were  sufficient  to  support  the  ac- 
tion, ordered  the  plaintiff  to  be  called  and  a  non-suit  was  accord- 
ingly entered. 

A  motion  was  afterward  made  to  set  aside  the  non-suit. 

Thompson,  J. — Could  the  plaintiff's  action  in  this  case  be  sus- 
tained at  law  without  infringing  upon  what  I  consider  well-settled 
principles,  I  should  think  the  non-suit  ought  to  be  set  aside ;  for  if  the 
facts  offered  to  be  proved  were  true  there  has  been  a  mistake  made 
in  the  deed,  which  ought  to  be  rectified.  But  relief  in  my  opinion 
is  not  to  be  had  in  a  court  of  law.  There  is  no  pretense  of  any 
fraud  having  been  practiced  upon  the  plaintiff.  The  most  that  can 
be  alleged  is,  that  there  has  been  a  mistake  with  respect  to  the  in- 
sertion of  the  consideration-money  in  the  deed.  The  contract  be- 
tween the  parties,  according  to  the  articles  of  agreement,  was  execu- 


358  MISTAKE   OF    FACT. 

tory,  and  having  been  executed  and  consummated  by  the  deed  sub- 
sequently given,  the  agreement  became  null  and  of  no  further  efifect. 
If  it  remained  in  force,  the  action,  if  at  all  sustainable,  should  have 
been  upon  the  covenant.  This  is  not  like  the  case  of  Weaver  v.. 
Bentley  (i  Caines  48).  The  court  there  sustained  the  action  for 
money  had  and  received,  on  the  ground  that  the  defendant  having 
altogether  failed  to  perform  the  contract,  on  his  part,  the  plaintiff 
had  his  election,  either  to  proceed  on  his  covenant  for  damages,  or 
to  disaffirm  the  contract,  and  to  bring  his  action  to  recover  back  the 
money  he  had  paid.  The  present  case,  however,  is  not  one  where 
the  plaintiff  claims  the  right  of  disaffirming  the  contract,  but  has 
consummated  it  by  the  acceptance  of  a  deed.  The  deed  cannot  be 
considered  as  an  execution  of  the  contract  in  part  only.  If  an  exe- 
cution at  all,  it  must  be  of  the  whole  contract,  and  the  articles  of 
agreement  are  a  nullity.  If  so,  the  testimony  offered  in  support  of 
the  plaintiff's  action,  to  show  that  the  consideration  expressed  in 
the  deed  was  more  than  ought  to  have  been  paid,  could  be  viewed 
in  no  other  light  than  as  parol  evidence,  repugnant  to  the  written 
contract.  That  such  testimony  is  not  admissible,  has  been  repeatedly 
ruled  in  this  court.  2  Caines  161 ;  i  Johns.  Rep.  418.  The  lan- 
guage of  the  court,  in  those  cases  was,  that  it  cannot  be  a  safe  or 
salutary  rule,  to  allow  a  contract  to  rest  partly  in  writing,  and  partly 
in  parol.  Whenever  it  is  reduced  to  writing,  that  is  to  be  considered 
the  evidence  of  the  agreement,  and  everything  resting  in  parol  be- 
comes thereby  extinguished.  I  cannot  perceive  why  any  parol  agree- 
ment, varying  the  consideration-money  expressed  in  the  deed,  does 
not  fall  within  this  rule,  as  much  as  if  it  related  to  any  other  part 
of  the  contract.  There  is,  however,  an  express  adjudication  of  this 
court  on  that  point,  in  the  case  of  Schermerhorn  v.  Vanderheyden, 
I  Johns.  Rep.  140.  The  court  there  say :  "The  consideration  for 
the  assignment  is  expressly  stated  in  the  deed  of  assignment  itself, 
and  the  parties  are  thereby  precluded  from  setting  up  any  greater 
or  different  consideration.  To  allow  of  parol  evidence  for  that  pur- 
pose, would  be  to  extend,  or  substantially  vary,  the  language  of  a 
written  contract.  Though  the  promise  in  question  may  have  been 
made  previously  to  the  assignment,  yet  after  the  execution  of  the 
instrument,  we  must  presume  that  the  father  and  son  altered  the 
consideration  mentioned  at  first,  and  finally  acted  upon  that  which 
is  set  forth  in  the  assignment."  So  in  the  case  before  us,  we  must 
])resuiTLe,  after  the  execution  of  the  deed,  that  the  consideration 
therein  mentioned  was  the  one  finally  agreed  on  between  the  par- 
ties. The  testimony  offered  to  show  an  agreement,  at  the  time  the 
deed  was  executed,  to  have  the  land  surveyed  and  the  price  regu- 
lated by  that  survey,  was  properly  rejected  as  coming  within  the 
principle  adopted  by  this  court  in  the  case  of  Mumford  v.  M'Pher- 
son,  T  Johns.  Rep.  414.  See  also  Bradley  v.  Blodget,  Kirby's  Rep. 
22.  The  plaintiff  was  permitted  on  the  trial  to  adduce  testimony 
to  show  that  the  defendant  had,  after  the  execution  of  the  deed, 


WRITTKX    COXTRACTS.  359 

acknowledg-ed  the  mistake  and  promised  to  refund  the  money,  but 
he  altogether  failed  in  establishini^  such  a  promise. 

Whatever  view,  therefore,  is  taken  of  the  case,  I  think  the  non- 
suit ought  to  stand  ;  and  that  the  present  motion  must  be  denied. 

Spencer,  J.,  was  of  the  same  opinion. 

Kent,  Ch.  J. — I  am  of  the  same  opinion.  I  confess  that  I  have 
struggled  hard,  and  with  the  strongest  inclination,  to  see  if  the 
action  for  money  had  and  received  would  not  help  the  plaintiff  in 
this  case ;  but  I  cannot  surmount  the  impediment  of  the  deed,  which 
the  plaintiff  has  accepted  from  the  defendant,  and  which  contains 
a  specific  consideration  in  money,  and  the  quantity  of  acres  con- 
veyed, with  the  usual  covenant  of  seisin.  Sitting  in  a  court  of  law, 
I  think  I  am  bound  to  look  to  that  deed  as  the  highest  evidence  of 
the  final  agreement  of  the  parties,  both  as  to  the  quantity  of  the 
land  to  be  conveyed,  and  the  price  to  be  given  for  it.  If  there  be  a 
mistake  in  the  deed  the  plaintiff  must  resort  to  a  court  of  equity, 
wdiich  has  had  a  long  established  jurisdiction  in  all  such  cases;  and 
where  even  parol  evidence  is  held  to  be  admissible  to  correct  the 
mistake,  i  Vesey  317;  3  Bro.  C.  C.  454;  5  Vesey,  jun.  595,  596;  6 
Vesey,  jun.  333,  334.  The  motion  to  set  aside  the  non-suit  must  be 
denied. 

Van  Ness,  J.,  having  formerly  been  concerned  as  counsel  in  the 
cause,  gave  no  opinion. 

Yates,  J.,  not  having  heard  the  argument  in  the  cause,  gave  no 
opinion. 

Judgment  of  non-suit.^ 

^  In  Houghtaling  v.  Lewis,  10  Johns.  296,  298  (1813),  the  court  says: 
"Articles  of  agreement  for  the  conveyance  of  land  are,  in  their  nature,  ex- 
ecutory, and  the  acceptance  of  a  deed,  in  pursuance  thereof,  is  to  be  deemed, 
prima  facie,  an  execution  of  the  contract,  and  the  agreement  thereby  becomes 
void,  and  of  no  further  efifect.  Parties  may,  no  doubt,  enter  into  covenants 
collateral  to  the  deed,  or  cases  'may  be  supposed  when  the  deed  would  be 
deemed  only  a  part  execution  of  the  contract,  if  the  provisions  in  the  two 
instruments  clearly  manifested  such  to  have  been  the  intention  of  the  parties. 
But  the  prima  facie  presumption  of  law  arising  from  the  acceptance  of  a 
deed,  is  that  it  is  an  execution  of  the  whole  contract ;  and  the  rights  and 
remedies  of  the  parties,  in  relation  to  such  contract,  are  to  be  determined 
by  such  deed,  and  the  original  agreement  becomes  null  and  void." 

Recovery  at  law  because  of  a  deficiency  in  the  amount  of  land  was  allowed 
upon  the  principle  of  the  cases  stated  suppositively  in  the  preceding  para- 
graph, in  Witbeck  v.  Waine,  16  N.  Y.  532  (1858),  and  Murdock  v.  Gilchrist, 
52  N.  Y.  242  (1873).  In  Paine  v.  Upton,  87  N.  Y.  2)'27  (1882),  a  suit  in 
equity  was  iDrought  to  obtain  a  deduction  from  the  sum  secured  by  a  bond 
and  mortgage,  given  for  a  portion  of  the  purchase  price  of  a  farm,  on  the 
ground  of  a  deficiency  in  and  mutual  mistake  as  to  the  quantity  of  land ;  and 
although  the  contract  had  been  executed  and  the  deed  given,  the  relief  was 
granted,  the  court  saying,  however,  that  the  power  of  equity  to  annul  or 
reform  executed  transactions  "should  be  exercised  with  great  caution." 


360  MISTAKE    OF    FACT. 

WILLIAMS  V.  HATHAWAY. 
19   Pick.    (Mass.)    387.— 1837. 

Assumpsit  to  recover  back  money  paid  to  the  defendant  by  the 
plaintiff  on  the  purchase  of  certain  land.  At  the  trial,  in  the  com- 
mon pleas,  before  Williams,  J.,  it  appeared  that  the  parcel  of  land 
in  question,  which  originally  belonged  to  the  defendant,  was  offered 
for  sale  by  public  auction,  on  the  20th  of  April,  1827,  it  being  esti- 
mated and  represented  to  contain  fifteen  acres ;  that  it  was  struck 
off  to  the  plaintiff  for  $5.05  by  the  acre,  on  that  estimate ;  that  the 
deed  of  the  land  from  the  defendant  set  forth,  that,  in  consideration 
of  the  sum  of  $75-75,  paid  him  by  the  plaintiff,  he  thereby  conveyed 
to  the  plaintiff  the  land  in  question,  "containing  fifteen  acres,"  de- 
scribed by  metes  and  bounds ;  that  there  was  no  agreement  at  the 
time  of  tlie  sale  or  of  the  execution  of  the  deed,  that  the  land  should 
be  measured  for  the  purpose  of  ascertaining  the  quantity ;  and  that 
by  an  admeasurement  made  in  January,  1837,  it  fell  short  of  the  es- 
timate by  one  acre  and  fifty-five  rods.  It  further  appeared,  that,  in 
1832,  the  defendant  said,  that  if  the  land  did  not  hold  out  the  fifteen 
acres,  he  would  make  it  right.  The  judge,  being  of  opinion  that  the 
action  could  not  be  sustained,  ordered  a  non-suit  to  be  entered.  The 
plaintiff  thereupon  excepted. 

Per  Curiam. — By  the  deed,  which  is  made  part  of  this  case,  it 
appears  that  the  plaintiff  paid  a  certain  sum  of  money  for  the  whole 
land  described  and  identified ;  and  by  the  rules  of  law,  when  a  deed 
is  executed  in  pursuance  of  a  contract  for  the  sale  of  land,  all  prior 
proposals  and  stipulations  are  merged,  and  the  deed  is  deemed  to 
express  the  final  and  entire  contract  between  the  parties.  If  the 
purchaser  was  not  satisfied  that  the  tract  contained  so  large  a  quan- 
tity as  it  was  estimated  at  he  should  have  had  it  measured  before 
he  took  his  deed  and  made  his  payment.  It  must  not  be  understood, 
from  the  deed,  either  that  it  was  in  fact  measured,  or  that  the  par- 
ties were  content  to  estimate  it  at  fifteen  acres,  and  settle  at  that 
rate,  whether  more  or  less.  And  if  the  tract  described  had  contained 
more  than  fifteen  acres,  there  is  no  doubt  that  it  would  have  passed 
by  the  deed,  and  the  grantor  would  have  had  no  remedy  for  the 
excess ;  the  deed  would  be  as  conclvisive  upon  him,  as  we  think  it 
now  is  on  the  plaintiff.  As  to  the  defendant  having  said  that  if  the 
land  did  not  hold  out  fifteen  acres  he  would  make  it  right,  it  can 
hardly  be  deemed  a  promise,  not  being  said  to  the  plaintiff;  but  if  it 
was,  it  was  made  upon  no  legal  consideration,  and  was  not,  therefore, 
the  ground  of  an  action. 

Exceptions  overruled  and  the  judgment  of  C.  C.  P.  affirmed. 


-r 


/ 

WRITTEN    CONTRACTS.  '361 


KREITER  V.  BOMBERGER. 

82  Pa.  St.  59.-1876. 

Assumpsit,  brought  by  J.  M.  Kreiter,  against  I.  F.  Bomberger. 
One  defense  was  by  way  of  set-ofif  and  was  "that  Kreiter  had  sold 
Bomberger  a  piece  of  ground  in  Warwick  village,  containing,  as 
represented  by  Kreiter  in  the  deed,  242  feet  4  inches  front,  and  in 
depth  200  feet,  containing  one  acre  and  a  half,  more  or  less,  which 
upon  actual  measurement  contained  52  feet  8  inches  less  in  front, 
the  deficiency  extending  through  its  entire  length,  reducing  the  area 
to  less  than  an  acre,  for  which  he  paid  $6,000,  and  claimed  dam- 
ages for  the  deficiency.  It  was  a  sale  consummated  by  payment,  de- 
livery of  deed,  and  possession  of  the  vendee  under  it."  The  jury 
allowed  the  set-off  of  damages  for  deficiency  of  land,  reducing  the 
verdict  from  $6,769.24,  as  it  would  have  been  upon  the  first  finding, 
to  $215.59,  for  which  amount  they  gave  a  verdict  for  the  plaintiff. 

Mr.  Justice  Sharswood. — *  *  *  *  'y\^q  right  of  a  vendee  to 
be  allowed  to  recover  for  an  alleged  deficiency  in  the  quantity  of  land 
purchased  by  him,  as  described  in  his  deed  or  articles  of  agreement, 
may  arise  in  three  different  classes  of  cases. 

The  first  is  when  the  agreement  is  entirely  executory.  I  cannot 
find  in  our  books  any  case  in  point,  but  in  most  of  those  which  have 
been  decided  where  the  agreement  has  been  carried  out  by  a  con- 
veyance, and  the  giving  of  securities  for  the  purchase-money,  so 
much  stress  is  laid  upon  the  execution  of  the  deed  as  to  produce 
the  impression  that  a  vendee,  where  the  articles  are  entirely  execu- 
tory, would  be  allowed  for  any  considerable  falling  off  in  the  quan- 
tity.^ Chief  Justice  Tilghman  declined  to  express  any  opinion  upon 
the  question  in  Smith  v.  Evans,  6  Binn.  102.  As  the  action  to  re- 
cover the  purchase-money  may  be  regarded  as  equivalent  to  a  bill 
in  equity  to  enforce  the  specific  performance  of  the  contract,  it  may 
well  be  concluded  that  the  vendee  ought  not  to  be  compelled  to  pay 

^"Plaintiff  contracted  to  purchase  from  defendant  a  parcel  of  land,  at  a 
certain  price  per  acre,  subject  to  'measurement,  and  to  pa}'  for  the  same  in 
certain  instahments,  defendant  agreeing  to  convey  to  him  after  such  pay- 
ments. In  pursuance  of  the  contract,  the  land  was  surveyed  by  a  land 
surveyor,  who  reported  the  number  of  acres,  and  plaintifif  paid  accordingly, 
both  parties  supposing  the  number  of  acres  to  be  that  reported  by  the 
surveyor.  Plaintiff  entered  into  and  took  possession  of  the  land  pursuant 
to  the  contract,  but  without  having  received  a  conveyance  thereof,  and  sold 
the:  same  to  a  third  party.  After  this  sale  a  resurvey  was  made,  and  the 
number  of  acres  ascertained  to  be  less  than  that  supposed  at  the  time  the 
payments  were  made;  also  that  the  description  differed  from  that  given  on 
the  former  survey. — Held,  in  an  action  brought  for  that  purpost,  that  the 
plaintiff  could  recover,  on  the  ground  of  a  mutual  mistake  of  facts  by  the 
parties,  the  amount  which  he  had  overpaid  the  defendant,  a'nd  was  entitled 
to  a  deed  containing  a  description  of  the  land  according  to  its  true  boundaries, 
and  stating  the  actual  number  of  acres." — George  v.  Tallman,  5  Lans.  (N.  Y.) 
392  (1871),  syllabus. 


362  MISTAKE   OF    FACT. 

for  more  land  than  he  actually  receives,  unless  it  appears  that  he 
understood  and  meant  to  take  the  risk  that  the  quantity  was  as 
represented.  The  case  is  much  plainer  when  the  agreement  is  at 
the  price  of  so  much  per  acre ;  and  even  where  it  is  for  a  round 
sum,  and  the  quantity  is  qualified  by  the  words  "more  or  less,"  the 
deficiency  should  be  a  reasonable  one,  as  in  the  old  case  of  Day  v. 
Finn,  Owen  133,  cited  in  9  Vin.  Abr.  343,  pi.  10,  where  it  is  held 
that  "sive  plus  sive  minus"  shall  be  intended  of  a  reasonable  quan- 
tity. Certainly  very  much  ought  to  depend  upon  the  extent  of  the 
purchase  and  the  value  of  the  land.  This,  however,  is  not  the  case 
which  we  have  before  us,  and  we  do  not  intend  to  express  an  opinion 
upon  it. 

The  second  class  of  cases  is  however  the  more  usual  one :  namely, 
where  the  contract  has  been  carried  out  by  the  execution  of  a  deed 
and  of  bonds  or  other  securities  for  the  purchase-money.  The  ques- 
tion has  there  arisen  upon  actions  to  recover  on  these  securities. 
In  such  cases  the  law  is  well  settled,  that  where  the  contract  was  for 
a  round  sum,  or  even  by  the  acre,  the  vendee  will  not  be  allowed  for 
a  deficiency  in  the  quantity,  where  the  number  of  acres  in  the  deed 
is  stated  with  the  qualification  more  or  less,  unless  there  be  fraud, 
or,  as  is  said,  the  difiference  is  so  very  great  as  to  show  an  evident 
mistake.  The  rule  was  stated  by  Mr.  Justice  Sergeant,  in  Galbraith 
V.  Galbraith,  6  Watts  112,  in  these  words:  "An  examination  of  the 
numerous  decided  cases  in  our  own  reports  will,  I  think,  show  that 
in  the  common  case  between  vendor  and  vendee,  in  a  conveyance  of 
a  tract  of  land  bounded  by  adjoining  owners,  and  described  as 
containing  so  many  acres,  be  the  same  more  or  less,  at  a  certain 
price  per  acre,  where  there  is  no  stipulation  for  admeasurement  nor 
any  mala  fides  proved,  redress  cannot,  after  the  bargain  is  closed, 
be  given  to  either  party  for  a  surplus  or  deficiency  subsequently 
appearing."  This  rule  was  adopted  and  confirmed  in  Hershey  v. 
Keemborts,  6  Barr  128;  Chief  Justice  Gibson  adding,  "The  vendor 
is  answerable  in  respect  of  the  quantity  only  for  inaJa  fides."  There 
are  indeed  many  dicta  that  the  difference  in  the  quantity  may  be  so 
great  as  to  be  evidence  itself  of  fraud  or  deceit,  or  of  great  misap- 
prehension between  the  parties,  and  then  equity  will  relieve.  Though 
no  case  is  to  be  found  of  an  actual  application  of  this  doctrine  in 
favor  of  the  vendee,  or  to  show  what  must  be  the  extent  of  the 
difference  to  raise  the  presumption,  yet  perhaps  it  may  be  fairly 
conceded,  that  in  an  action  to  enforce  the  payment  of  purchase- 
money,  a  deduction  under  such  circumstances  will  be  allowed.  Such 
is  the  weight  of  extra  judicial  opinions:  Boar  v.  McCormick,  i  S.  & 
R.  t66;  Glen  v.  Glen,  4  Td.  488;  Bailey  v.  Snyder,  13  Id.  160; 
McDowell  v.  Cooper,  14  Id.  296;  Ashcom  v.  Smith,  2  Penna.  R. 
219;  Frederick  v.  Campl^ell,  13  S.  &  R.  136;  Haggerty  v.  Fagan,  2 
Penna.  R.  533;  Coughenour's  Adm'rs  v.  Stauft,  27  P.  F.  Smith  191. 

The  third  class  of  cases  to  which  the  one  now  under  consideration 
belongs,  is  where  the  contract  is  fully  executed  and  the  purchase- 
money  paid.   We  arc  of  the  opinion  that  in  this  class,  the  transaction 


WRITTEN'    CONTRACTS.  ■^6', 


C^'o 


cannot  be  ripped  up,  without  actual  proof  of  fraud  or  mutual  mis- 
take. Upon  this  question  the  j^reatness  of  the  difference  may  be 
evidence,  but  not  sufficient  of  itself.  There  must  be  other  circum- 
stances. Cases  of  this  class  very  rarely  arise.  I  can  find  but  one  in- 
stance in  our  books.  That  is  the  case  of  Large  v.  Penn,  6  S.  &  R. 
488.  There  the  difference  was  very  great  in  reference  to  the  extent 
of  the  premises.  The  quantity  conveyed  was  described  as  2^  acres, 
and  without  the  words  ''more  or  less ;"  the  actual  quantity  was, 
I  acre,  148  perches.  Yet  the  vendee  was  denied  relief ;  Chief 
Justice  TiLGHMAN  remarking:  "It  is  the  boundaries  to  which  the 
grantee  must  look ;  he  has  a  right  to  all  the  land  within  them.  The 
quantity  is  a  matter  of  calculation,  and,  be  it  more  or  less,  passes. 
There  is  no  express  covenant  that  the  quantity  in  this  case  shall 
amount  to  2%  acres.  Nor  is  there  any  implied  covenant,  because 
the  quantity  is  introduced  not  by  way  of  covenant,  but  of  descrip- 
tion." So  in  Smith  v.  Evans,  6  Rinn.  102,  which  was  a  proceeding 
on  a  mortgage,  to  recover  unpaid  purchase-money,  where  upon  a 
conveyance  of  99154  ?-cres,  more  or  less,  the  quantity  fell  short  88 
acres,  48  perches,  and  the  vendee  was  refused  relief ;  Mr.  Justice 
Yeates,  in  his  dissenting  opinion,  says :  "And  yet  I  freely  confess 
that  if,  under  this  state  of  facts,  the  whole  money  had  been  paid, 
and  the  transaction  closed,  I  know  of  no  legal  mode  whereby  any 
of  the  money  could  be  recovered  back."  This  distinction  between 
cases  where  the  purchase-money  has  been  fully  paid  and  the  de- 
mand is  to  recover  back  part,  and  cases  where  the  vendor  is  pro- 
ceeding upon  his  securities  to  enforce  full  payment,  is  well  sus- 
tained by  the  general  principles  upon  which  courts  of  equity  pro- 
ceed. They  will  not  rescind  a  contract  fully  executed  without  clear 
proof  of  fraud  or  mutual  mistake  in  an  essential  point.  They  pro- 
ceed upon  different  principles  in  the  enforcement  of  contracts. 

It  follows  that  there  was  error  committed  by  the  learned  judge 
below  in  admitting  and  submitting  to  the  jury  the  deed  from 
Kreiter  to  Bomberger,  as  in  itself  sufficient  evidence  of  fraud  or 
mistake,  if  they  should  think  the  difference  very  great.  If  it  was 
sufficient  of  itself,  it  was  a  question  of  law  for  the  court  and  not 
of  fact  for  the  jury.  There  was  no  evidence  besides  the  deed  to 
show  fraud  in  Kreiter  or  mutual  mistake  of  the  parties.  The  vendee 
was  well  acquainted  with  the  lot,  within  the  boundaries  described 
in  the  deed.  That  was  the  lot  he  bought.  There  was  no  representa- 
tion by  the  vendor  of  the  quantity  of  acres  it  contained.  The  de- 
scription in  the  deed  was  most  probably  copied  from  the  prior  con- 
veyances to  him  recited  in  it.  Both  parties  made  and  concluded  the 
bargain  with  their  eyes  open.  The  vendee  threw  out  no  anchor  to 
windward  as  to  quantity  as  he  did  as  to  title  by  his  covenant  of 
general  warranty.  If  within  any  period  short  of  six  years  from  the 
time  of  the  transaction,  a  contract  of  purchase  and  sale,  fully  exe- 
cuted by  delivery  of  the  deed  and  payment  of  the  purchase-money, 
can  be  overhauled  and  materially  changed,  very  disastrous  conse- 
quences will  ensue  not  only  to  vendors  called  upon  to  refund  what 


364  MISTAKE   OF   FACT. 

they  had  every  reason  to  believe  was  their  own  and  had  a  right  to 
deal  with  accordingly,  but  to  the  public  at  large,  by  sowing  the 
seeds  of  an  abundant  crop  of  lawsuits. 

Judgment  reversed  and  venire  facias  de  novo  awarded. 


RAND  V.  WEBBER. 
64  Me.    191. — 1874. 

Assumpsit,  alleging  that,  on  the  twenty-second  day  of  February, 
A.  D.  1867,  in  consideration  that  the  plaintiff  would  buy  "the  Sam- 
uel Bean  farm"  in  Hudson  for  five  hundred  dollars,  the  defendant 
promised  to  sell  her  the  farm  for  that  sum,  and  promised  that  it 
"included  a  certain  piece  of  good,  cleared  land  containing  about 
ten  acres  and  lying  on  the  side  of  the  road  opposite  to  the  main 
body  of  the  farm,  of  the  value  of  two  hundred  dollars ;"  in  con- 
sideration whereof  the  plaintiff  promised  to  buy  said  farm ;  but 
the  defendant  "subtly  intending  to  deceive  and  defraud  the  plain- 
tiff," etc.,  conveyed  to  her  a  described  parcel  of  land,  which  did 
not  embrace  the  ten  acre  lot  aforesaid,  which  he  had  promised  her, 
and  which  she  had  paid  for,  etc.  Substantially  the  same  facts  were 
set  forth  in  several  special  counts ;  and,  when  the  cause  came  on 
for  trial,  the  plaintiff  was  allowed,  against  the  defendant's  objec- 
tion, to  add  the  count  for  money  had  and  received.  The  general 
issue  was  pleaded  in  defense,  with  a  brief  statement  setting  up  the 
statute  of  frauds,  and  that  assumpsit  would  not  lie  if  the  facts  al- 
leged were  all  proved.  The  case  was  reported  for  the  entry  of  a 
non-suit  or  default  as  the  court  should  consider  the  law  upon  the 
facts  required. 

Peters,  J. — The  defendant  deeded  to  the  plaintiff  a  piece  of  land. 
It  appears  that  the  deed  does  not  include  a  parcel  of  about  ten 
acres,  which  the  defendant  represented  he  was  conveying,  and 
which  the  plaintiff  supposed  she  was  getting,  when  the  deed  was 
made.  The  omission  was  occasioned,  either  by  the  mutual  mistake 
of  the  parties,  or  by  fraud  on  the  part  of  the  defendant.  The  plain- 
tiff does  not  rescind  the  contract  on  this  account.  She  relies  upon  a 
si)ecial  count  in  assumpsit  and  a  count  for  money  had  and  received, 
to  recover  back  so  much  of  the  purchase-money,  as  said  omitted 
parcel  was  actually  worth.  Whether  this  action  can  be  maintained, 
is  the  question  for  our  determination. 

We  are  satisfied  that  the  form  of  remedy  is  misconceived.  It  is 
clear  that  the  count  declaring  on  a  special  oral  promise  to  convey  the 
ten  acres  cannot  be  maintained,  because  such  a  contract  is  within  the 
statute  of  frauds.  The  statute  of  frauds  is  duly  pleaded  and  re- 
lied on. 

And  it  is  just  as  certain  that  the  action  cannot  be  upheld  upon 


WRITTEN    CONTRACTS.  365 

the  common  counts.  This  form  of  declaring  is  predicated  upon  a 
repudiation  of  what  has  been  done.  It  cannot  be  allowed,  unless 
based  upon  a  rescission  of  the  contract.  This  cannot  be  partial,  but 
must  be  entire.  Both  parties  must  be  restored  to  the  condition  in 
which  they  were  before  the  contract  was  made.  No  new  contract 
can  be  made  for  them  without  the  consent  of  both.  The  plaintiff 
must  tender  a  release  of  the  premises  conveyed,  before  sbe  can  sue 
to  recover  back  any  part  of  the  consideration  paid.  She  might  have 
resorted  to  equity,  if  there  was  a  mutual  mistake ;  or  she  might 
have  an  action  of  deceit  to  recover  the  damages  actually  sustained, 
if  the  defendant  committed  a  fraud  upon  her,  and  she  might  defend 
against  any  notes  given  for  the  land,  to  the  extent  of  the  damages 
sustained  by  the  defendant's  fraud,  if  they  should  be  sued  by  the 
defendant  or  any  one  having  no  superior  rights  to  the  defendant. 
These  propositions  are  familiar  doctrine,  and  abundantly  sustained 
by  the  following,  and  numerous  other  authorities.  Herbert  v.  Ford, 
29  Maine  546 ;  Garland  v.  Spencer,  46  Maine  528 ;  Percival  v.  Hich- 
born,  56  Maine  575.    And  see  cases  cited  hereafter. 

But  the  plaintiff  contends  that  this  case  can  be  rescued  from  an 
application  of  these  technical  principles,  upon  the  strength  of  the 
precedent  in  Goodspeed  v.  Fuller,  46  Maine  141,  It  was  there  de- 
cided "that  upon  the  money  counts  parol  evidence  was  admissible 
to  prove  that  the  defendant,  for  the  amount  expressed  as  the  con- 
sideration in  a  deed,  agreed  to  sell  and  convey  to  the  plaintiff  two 
lots  of  land,  each  for  a  specified  price ;  that  the  plaintiff  paid  the 
defendant  the  full  sum  for  both  lots,  and  that  by  mistake  or  fraud 
of  the  grantor,  only  one  of  the  lots  was  conveyed  by  the  deed,  and 
the  defendant  having,  upon  request,  refused  to  convey  the  other 
lot,  that  the  plaintiff  could  recover  back  the  consideration  paid  for 
it  with  interest."  That  case  was  not  like  this.  In  that  case  there 
was  a  bargain  for  two  lots  at  separate  prices.  Two  bargains  were 
there  described  in  one  transaction.  The  consideration  was  divisible. 
But  in  the  case  at  bar  there  is  but  one  contract,  and  one  gross  sum 
to  be  paid  for  the  whole.  All  the  land  was  bargained  for  as  an 
entirety.  It  must  be  borne  in  mind,  that  it  is  not  the  actual  value  of 
the  omitted  lot  that  the  plaintiff  should  recover  (if  at  all),  but  the 
exact  amount  of  the  consideration  paid  therefor.  How  can  this  be 
ascertained  ?  How  can  it  be  known  how  much  the  purchase  price 
of  the  "ten  acres"  was  in  comparison  with  the  price  of  any  other 
portion  or  of  the  whole?  How  can  it  be  known  that  the  defendant 
would  sell  one  parcel  without  the  other?  Or  how  much  the  value 
of  one  parcel  may  be  reduced  by  its  separation  in  ownership  or  oc- 
cupation from  the  whole? 

The  distinction  between  the  case  cited  and  this  case  is  very  forci- 
bly illustrated  in  Miner  v.  Bradley,  22  Pick.  457,  to  which  we  refer 
as  directly  supporting  our  conclusions  here.  The  same  question 
afterwards  arose,  and  was  elaborately  examined,  both  by  counsel 
and  court,  in  Clark  v.  Baker.  5  Mete.  452.  The  same  principle  was 
affirmed  in  the  later  cases  of  Morse  v,  Brackett,  98  Mass.  205 ;  and 


366  MISTAKE   OF    FACT. 

Bartlett  v.  Drake,  100  Mass.  174.  The  case  of  Johnson  v.  Johnson, 
3  Bos.  &  Pul.  162,  much  relied  on  in  the  Massachusetts  cases,  is  also 
a  very  forcible  case  directly  in  point.  The  opinion  of  the  court  in 
Gushing-  v.  Rice,  46  Maine  303,  is  not  inconsistent  with  our  views  as 
expressed  here,  althoug'h  it  may  be  regarded  as  to  some  extent  con- 
flicting with  one  of  the  Massachusetts  cases  above  cited.  In  that 
case  the  plaintiff  was  allowed  to  recover  back  money  paid  for  logs 
which  he  had  not  got,  there  being  no  difficulty  in  making  an  appor- 
tionment of  the  consideration,  as  no  point  was  made  that  there  was 
any  difference  in  the  value  per  thousand  feet  between  the  logs  that 
were  and  those  that  were  not  received.  The  court  say  in  that  case 
that  it  does  not  appear  upon  what  ground  the  verdict  was  rendered ; 
and  that  the  exceptions  disclosed  no  objection  to  the  form  of  the 
action  or  to  the  instructions  of  the  presiding  judge.  It  appears  that 
no  point  was  taken  at  the  trial  of  that  case,  that  the  remedy  was 
misconceived. 

It  appears  that  the  cause  of  action  in  this  case  arose  more  than 
six  years  before  another  suit  could  now  be  commenced.  As  the 
special  count  stood,  it  could  easily  be  amended  so  as  to  have 
been  an  action  of  deceit.  The  plaintiff  elected  otherwise  by  adding 
a  money  count,  and  joining  pleadings  in  assumpsit.  The  plaintiff 
may  at  nisi  prius  have  leave  to  have  the  writ  amended  and  the  plead- 
ings reformed,  conformably  to  an  action  of  tort,  by  paying  costs 
and  receiving  none  up  to  the  date  of  the  amendment ;  otherwise 

A  non-suit  to  be  entered. 


WHITE  V.  MILLER. 

22  Vt.   380. — 1850. 

Indebitatus  assumpsit  for  money  had  and  received.  On  trial  the 
plaintiff  proved  by  parol  testimony,  which  was  objected  to  by  the 
defendant  but  admitted  by  the  court,  that  in  September,  1844,  he 
contracted  with  the  defendant  to  purchase  and  did  purchase  of  him 
an  irregularly  shaped  piece  of  land,  at  the  price  of  $25  per  acre, — 
the  quantity  of  land  being  vmknown  to  the  parties ;  that  the  plain- 
tiff and  defendant  went  together,  and,  with  leading  lines,  measured 
the  lines  of  the  land,  and  the  defendant  computed  the  contents  and 
made  the  same  amount  to  5i^  acres;  that  at  the  same  time,  and  im- 
mediately after  the  defendant's  computation,  a  third  person,  not  a 
surveyor,  at  the  request  of  the  plaintiff,  computed  the  contents, 
from  the  defendant's  minutes,  as  the  defendant  had  done,  and  with 
the  same  result;  that  in  both  computations  an  error  occurred  of  i^'^ 
acre, —  the  land,  when  correctly  computed,  amounting  to  only  4^^ 
acres ;  and  that  both  parties  being  ignorant  of  the  mistake  in  the 
computation,  the  plaintiff  paid  to  the  defendant  $143.75.  ^^'^^  price 
of  5.)4  acres  at  $25  per  acre,  and  the  defendant  executed  to  the 
plaintiff  a  deed  of  the  land,  and  the  plaintiff  went  into  possession, 


WRITTEN    CONTRACTS.  367 

and  still  continues  in  possession.  The  deed,  which  on  notice  by  the 
defendant  was  produced  by  the  plaintiff,  was  a  deed  with  covenants 
of  warranty,  in  common  form,  acknowledging  the  receipt  of  $142 
as  the  consideration,  and  describing  the  land  as  being  bounded  on 
certain  other  lands,  without  giving  courses,  or  distances, — the  de- 
scription concluding  with  these  words, — "the  same  containing  about 
5^  acres,  be  the  same  more  or  less."  The  court  charged  the  jury, 
that  upon  the  evidence,  if  believed,  the  plaintiff  would  be  entitled 
to  recover;  and  the  jury  returned  a  verdict  in  his  favor  for  the 
amount  of  the  deficiency  in  the  land,  at  $25  per  acre.  Exceptions 
by  defendant. 

Hall,  J. — The  first  and  most  important  objection,  that  is  made  to 
the  verdict  is,  that  the  parol  testimony  was  improperly  admitted, 
for  the  alleged  reason,  that  the  whole  contract  between  the  parties 
was  merged  in  the  deed  and  could  not  otherwise  be  shown  than  by 
the  deed  itself. 

How  far  a  contract  for  the  purchase  and  sale  of  land  is  to  be  con- 
sidered as  being  embraced  and  controlled  by  the  terms  of  the  deed 
is  a  question,  upon  which  the  authorities  are  to  some  extent  contra- 
dictory and  irreconcilable.  In  England  the  recital  of  the  payment 
of  the  consideration  money  in  a  deed  of  conveyance  is  regarded  as 
conclusive  evidence  of  payment,  binding  the  parties  by  estoppel ; 
and  to  that  effect  are  some  of  the  earlier  cases  in  this  country.  But 
the  American  courts  now  generally  treat  the  recital  of  the  receipt 
of  the  consideration  as  only  prima  facie  evidence  of  the  amount  paid  ; 
and  as  subject  to  explanation,  by  showing,  by  parol,  that  nothing 
in  reality  had  been  paid,  but  that  the  sum  agreed  upon  as  the  con- 
sideration for  the  conveyance  was  still  due  and  unpaid.  This  is  the 
undoubted  law  of  this  state.  Beach  v.  Packard,  10  Vt.  96;  Lazell 
V.  Lazell,  12  Vt.  443.  The  recital  in  the  deed  is  not,  however,  much 
relied  upon  as  an  obstacle  to  the  introduction  of  the  parol  testimony 
in  this  case.  But  it  is  insisted,  that  the  conclusion  of  the  descrip- 
tion of  the  land  in  the  deed, — "the  same  containing  about  5^  acres, 
be  the  same  more  or  less," — is  to  be  taken  as  conclusive  evidence, 
that,  at  the  final  consummation  of  the  contract,  the  plaintiff  agreed 
to  accept  the  land,  and  to  pay  the  consideration  for  it,  without  refer- 
ence to  the  quantity  it  contained, — that,  having  received  the  land 
for  more  or  less,  without  reference  to  the  quantity,  he  cannot  now 
be  permitted  to  show  that  the  contract  was  for  a  certain  number  of 
acres,  and  that  the  quantity  turned  out  to  be  less  than  was  contracted 
for.  The  question  in  regard  to  the  effect  of  a  recital  of  this  descrip- 
tion, in  a  deed,  upon  the  contract  of  purchase  and  sale,  is  one  of 
considerable  difficulty,  and  one  which  does  not  appear  to  be  con- 
trolled by  positive  authority.  The  reason  why  the  recital  of  the  re- 
ceipt of  the  consideration  in  the  deed  is  not  now  held  to  be  con- 
clusive is,  that  the  object  of  inserting  the  consideration  is  to  give 
effect  to  the  conveyance,  as  a  legal  instrument,  and  not  to  specify 
the  contract  in  regard  to  the  price  paid,  or  to  be  paid,  or  the  fact 
or  mode  of  payment.    The  receipt  of  the  consideration  being  ac- 


368  MISTAKE   OF    FACT. 

knowledg-ed  for  one  purpose,  it  is  held  to  be  unjust  to  allow  it  to 
conclude  a  party  upon  another  matter,  not  contemplated  by  its  in- 
sertion. 

Was  the  statement,  in  the  present  case,  of  the  quantity  of  land  in 
the  deed,  with  the  qualification  of  more  or  less  added  to  it,  designed 
as  a  recital  of  the  contract,  that  had  been  made  between  the  parties 
in  regard  to  the  price  to  be  paid,  or  was  it  merely  intended  as  part 
of  the  description  of  the  land  to  be  conveyed  ?  It  has  long  been  held, 
that  the  statement  of  a  precise  quantity  of  land,  as  conveyed  by  a 
deed,  does  not  bind  the  grantor  to  make  good  that  quantity.  Thus, 
it  was  held  in  Beach  v.  Stearns  et  iix.,  i  Aik.  325,  that  the  words 
"containing  thirty-four  acres  and  nineteen  rods  of  ground,"  in  a 
deed,  added  to  a  description  of  the  land  by  metes  and  bounds,  did 
not  import  an  agreement,  that  the  land  should  hold  out  that  quan- 
tity. And  in  Powell  v.  Clark,  5  Mass.  355,  the  still  stronger  words — 
"the  lot  to  contain  two  hundred  acres  by  measure" — following  a 
similar  description  of  the  land,  were  held  to  be  alike  inoperative 
against  the  grantor.  The  reason  given,  w'hy  such  words — of  a  suffi- 
ciently affirmative  character  to  import  a  covenant — should  not  be 
construed  as  such,  is,  that  they  were  not  inserted  for  the  purpose  of 
declaring  what  the  contract  had  been  between  the  parties  in  regard 
to  the  quantity  of  land,  but  merely  as  a  part  of  the  description  of  the 
land  designed  to  be  conveyed.  If  words  thus  made  use  of,  posi- 
tively declaring  the  conveyance  of  a  precise  quantity  of  land,  are 
not  evidence  against  the  grantor  that  he  had  sold  that  quantity,  it 
is  difficult  to  perceive  why  words  which  merely  import  that  the 
quantity  may  be  uncertain  should  be  conclusive  proof  against  the 
grantee  that  he  had  purchased  and  agreed  to  pay  for  the  land, 
without  reference  to  the  quantity.  If  the  language  is  merely  de- 
scriptive of  the  land,  when  the  quantity  is  stated  as  certain,  it  would 
seem  to  be  equally  so  when  the  quantity  is  stated  to  be  uncertain. 

The  purpose  for  which  the  deed  is  made  is  not  to  state  the  con- 
tract between  the  parties  in  regard  to  the  terms  of  the  purchase,  hut 
to  pass  the  title  to  the  land.  The  deed  is  not,  strictly  speaking,  an 
agreement  between  the  grantor  and  the  grantee.  It  is  executed  by 
the  grantor  alone,  and  is  a  declaration  by  him,  addressed  to  all  man- 
kind, informing  them  that  he  thereby  conveys  to  the  grantee  the 
land  therein  described.  The  object  is  to  pass  the  title, — not  to  de- 
clare the  terms  upon  which  the  land  had  been  sold  and  the  mode  in 
v/hich  the  payment  was  to  be  made.  And  in  declaring  that  the  land 
described  contains  about  so  many  acres,  more  or  less,  the  grantor 
merely  says,  that  the  land  included  within  the  boundaries  before 
stated  shall  pass  to  the  grantee,  whatever  may  be  the  quantity — 
whether  it  be  more  or  less  than  the  quantity  stated.  It  would  be  a 
forced  construction  of  such  language,  thus  used,  to  hold  that  the 
grantor  intended  thereby  to  make  any  declaration  in  regard  to  the 
particular  terms  of  the  purchase,  or  the  mode  by  which  the  price 
to  be  paid  for  the  land  had  been  arrived  at  between  the  parties. 

It  is  not  intended  to  say  that  the  terms  of  a  contract  of  sale  may 


WRITTEN    CONTRACTS.  369 

not  be  recited  in  the  deed  ;  and  when  the  design  to  do  so  is  apparent, 
effect  should  doubtless  be  i^iven  to  the  recital.  But  when  the  lan- 
guage of  the  deed,  as  in  the  present  case,  is  general,  and  the  words 
used  may  have  their  full  force,  as  descriptive  of  the  land,  we  think 
they  should  not  be  construed  to  conclude  the  parties  in  regard  to  the 
terms  of  the  contract. 

It  is  not  to  be  denied  that  it  would  be  difficult  to  reconcile  some 
of  the  authorities  cited  in  the  argument  with  the  conclusion  to  which 
we  have  come,  and  upon  what  I  considered  to  be  the  weight  of 
authority,  I  was  at  first  inclined  to  hold  that  the  parol  testimony 
should  have  been  excluded.  But  on  farther  consideration  and  re- 
flection I  have  become  satisfied  that  the  view  we  have  taken  is 
founded  on  the  true  nature  and  object  of  a  deed  of  conveyance, — 
especially  a  conveyance  by  deed  poll,  and  that  any  other  rule  than 
that  we  adopt  would  give  an  effect  to  the  instrument  not  con- 
templated by  the  parties  to  do,  and  would  consequently  operate  un- 
justly. We  are  therefore  of  opinion  that  the  contract  proved  by 
parol  is  not  to  be  considered  as  having  been  merged  in  the  deed,  and 
that  the  evidence  was  properly  admitted. 

It  is  farther  objected  in  behalf  of  the  defendant  that  the  facts 
proved  were  insufficient  to  authorize  a  recovery.  It  is  said  that  the 
parties  having  each  an  opportunity  of  ascertaining  the  quantity  of  the 
land,  and  there  being  no  fraud  in  the  case,  the  principle  of  caveat . 
emptor  applies,  and  that  the  plaintiff  is  to  be  considered  as  having 
taken  the  land,  in  regard  to  the  quantity,  at  his  own  risk.  It  is  un- 
doubtedly a  general  rule  of  law,  well  settled  in  this  State,  that  in 
the  absence  of  fraud  and  warranty  the  purchaser  takes  the  property 
at  his  own  risk,  as  it  regards  its  quality,  and  where  the  quantity  is 
made  the  subject  of  estimation  only,  a  similar  rule  would  probably 
apply.  But  when  the  quantity  of  the  thing  purchased  is  agreed  to 
be  ascertained  by  count,  weight,  or  measure,  and  there  is  an  error 
in  the  count,  weight,  or  measure,  such  error  must  be  a  proper  sub- 
ject of  correction.  In  the  present  case  the  price  to  be  paid  was  to 
be  determined  by  the  quantity  of  the  land,  and  the  error  appears 
to  have  been  one  of  mere  computation.  It  would  seem,  from 
the  bill  of  exceptions,  that  the  lines  of  the  land  were  rightly  meas- 
ured, but  the  quantity  erroneously  computed.  The  parties  were 
under  a  mutual  mistake,  by  reason  of  which  a  greater  amount  of 
money  was  paid  to  the  defendant  than  he  was  entitled  to  by  the 
contract.  The  excess,  above  that  which  the  defendant  was  to  receive 
by  the  contract,  belongs  in  equity  and  good  conscience  to  the 
plaintiff",  and  we  think  he  may  well  recover  it  in  this  action. 

It  may  be  added,  in  reference  to  another  objection  made  in 
argvunent,  that  this  is  not  a  case  in  which  it  was  necessary  for  the 
plaintiff  to  rescind  the  contract,  or  to  offer  to  rescind  it,  before 
bringing  the  action ;  because  when  the  money  is  recovered  the 
parties  will  be  left  in  the  precise  situation  in  which  they  were  to  be 

Woodruff's  Cases — 24 


370  MISTAKE   OF    FACT. 

placed  by  the  contract,    Johnson  v.  Johnson,  3  B.  &  P.  162 ;  Miner 
V.  Bradley,  22  Pick,  460. 

The  result  is  that  the  judgment  of  the  county  court  is  to  be  af- 
firmed. 


7.      MISTAKE    AS    TO     NEGOTIABLE    INSTRUMENTS. 

PRICE  V.  NEAL. 

3  Burr.   (K.  B.)   1354.— 1762. 

Action  upon  the  case  brought  by  Price  against  Neal,  wherein 
Price  declares  that  the  defendant  Edward  Neal  was  indebted  to  him 
in  i8o  for  money  had  and  received  to  his  the  plaintiff's  use ;  and 
damages  were  laid  to  iioo.  The  general  issue  was  pleaded,  and  issue 
joined  thereon. 

It  was  proved  at  the  trial,  that  a  bill  was  drawn  as  follows : — 
"Leicester,  22d  November,  1760,  Sir,  six  weeks  after  date  pay  Mr. 
Rogers  Ruding  or  order  forty  pounds,  value  received,  for  Mr, 
Thomas  Poughfor ;  as  advised  by,  Sir,  your  humble  servant,  Ben- 
jamin Sutton.  To  Mr.  John  Price  in  Bush-lane,  Cannon-street,  Lon- 
don." Indorsed  "R.  Ruding,  Antony  Topham,  Hammond,  and 
Laroche.  Received  the  contents,  James  Watson  and  Son ;  witness 
Edward  Neal,"  That  this  bill  was  indorsed  to  the  defendant 
for  a  valuable  consideration,  and  notice  of  the  bill  left  at  the  plain- 
tiff's house,  on  the  day  it  became  due.  Whereupon  the  plaintiff  sent 
his  servant  to  call  on  the  defendant,  to  pay  him  the  said  sum  of  £40 
and  take  up  the  said  bill ;  which  was  done  accordingly. 

That  another  bill  was  drawn  as  follows:  "Leicester,  ist  February, 
1761.  Sir,  six  weeks  after  date  pay  Mr.  Rogers  Ruding  or  order 
forty  pounds,  value  received,  for  Mr.  Thomas  Ploughfor,  as  ad- 
vised by,  Sir,  your  humble  servant,  Benjamin  Sutton.  To  Mr.  John 
Price  in  Bush-lane,  Cannon-street,  London."  That  this  bill  was 
indorsed,  "R.  Ruding,  Thomas  Watson  and  Son.  Witness  for 
Smith,  Right  and  Co."  That  the  plaintiff  accepted  this  bill,  by  writ- 
ing on  it,  "Accepted,  John  Price ;"  and  that  the  plaintiff  wTote  on 
the  back  of  it :  "Messieurs  Freame  and  Barclay,  pray  pay  forty 
pounds  for  John  Price,"  That  this  bill  being  so  accepted  was  in- 
dorsed to  the  defendant  for  a  valuable  consideration,  and  left  at  his 
banker's  for  payment ;  and  was  paid  by  order  of  the  plaintiff  and 
taken  up. 

Both  these  bills  were  forged  by  one  Lee,  Defendant  Neal  acted 
innocently  and  paid  the  whole  value  of  these  bills.  Verdict  for  the 
plaintiff,  subject  to  the  opinion  of  the  court  upon  this  question: 
"Whether  the  plaintiff,  under  the  circumstances  of  this  case,  can 
recover  back  from  the  defendant  the  money  he  paid  on  the  said 
bills  or  either  of  them," 


NEGOTIABLE    INSTRUMENTS.  37I 

Lord  Mansfield  stopt  him  [defendant's  counsel]  from  going  on, 
saying  that  this  was  one  of  those  cases  that  could  never  be  made 
plainer  by  argument.  It  is  an  action  upon  the  case  for  money  had 
and  received  to  the  plaintiff's  use.  In  which  action,  the  plaintiff 
cannot  recover  the  money,  unless  it  be  against  conscience  in  the  de- 
fendant to  retain  it ;  and  great  liberality  is  always  allowed  in  this 
sort  of  action.  But  it  can  never  be  thought  unconscientious  in  the 
defendant,  to  retain  this  money,  when  he  has  once  received  it  upon 
a  bill  of  exchange  indorsed  to  him  for  a  fair  and  valuable  considera- 
tion, which  he  had  bona  fide  paid  without  the  least  privity  or  suspi- 
cion of  any  forgery. 

Here  was  no  fraud ;  no  wrong.  It  was  incumbent  upon  the  plain- 
tiff to  be  satisfied  "that  the  bill  drawn  upon  him  was  the  drawer's 
hand,"  before  he  accepted  or  paid  it ;  but  it  was  not  incumbent  upon 
the  defendant  to  inquire  into  it.  Here  was  notice  given  by  the  de- 
fendant to  the  plaintiff  of  a  bill  drawn  upon  him,  and  he  sends  his 
servant  to  pay  it  and  take  it  up.  The  other  bill  he  actually  accepts ; 
after  which  acceptance,  the  defendant  innocently  and  bona  Ude  dis- 
counts it.  The  plaintiff  lies  by  for  a  considerable  time  after  he  has 
paid  these  bills,  and  then  found  out  "that  they  were  forged ;"  and 
the  forger  comes  to  be  hanged.  He  made  no  objection  to  them,  at 
the  time  of  paying  them.  Whatever  neglect  there  was,  was  on  his 
side.  The  defendant  had  actual  encouragement  from  the  plaintiff 
himself,  for  negotiating  the  second  bill,  from  the  plaintiff's  having 
without  any  scruple  or  hesitation  paid  the  first ;  and  he  paid  the 
whole  value  bona  Ude.  It  is  a  misfortune  which  has  happened  with- 
out the  defendant's  fault  or  neglect.  If  there  was  no  neglect  in  the 
plaintiff,  yet  there  is  no  reason  to  throw  off  the  loss  from  one  inno- 
cent man  upon  another  innocent  man ;  but,  in  this  case,  if  there  was 
any  fault  or  negligence  in  any  one,  it  certainly  was  in  the  plaintiff, 
and  not  in  the  defendant. 

Rule :  that  the  postea  be  delivered  to  the  defendant. 


Holmes,  C.  J.,  in  DEDHAM   NATIONAL  BANK  v.  EVER- 
ETT NATIONAL  BANK. 

177  Mass.  392. — 1901. 

The  plaintiff's  argument  is  directed  to  proving  that  we  should 
not  adopt  the  rule  laid  down  in  Price  v.  Neal,  3  Burrows,  1354, 
according  to  which  a  drawee  paying  a  forged  draft  or  check  to  a 
bona  fide  purchaser  cannot  recover  back  the  money  paid.  We  are 
aware  that  this  rule  has  been  questioned  by  some  text  writers.  But 
it  is  of  such  universal,  or  nearly  universal,  acceptance  that  we  shall 
go  into  no  extended  discussion.  Gloucester  Bank  v.  Salem  Bank,  17 
Mass.  33,  42,  43  ;  Bank  v.  Bangs,  io6  Mass.  441,  444 ;  Welch  v.  Good- 


372  MISTAKE   OF    FACT. 

win,  123  Mass.  71,  'j'j ;  First  Nat.  Bank  of  Danvers  v.  First  Nat. 
Bank  of  Salem,  151  Mass.  280,  283,  24  N.  E.  44;  Bank  of  United 
States  V.  Bank  of  Georgia,  10  Wheat.  333,  348,  6  L.  Ed.  334;  2 
Daniel,  Neg.  Inst.  (3d  Ed.)  §§  1359-1361. 

Probably  the  rule  was  adopted  from  an  impression  of  convenience 
rather  than  for  any  more  academic  reason ;  or  perhaps  we  may  say 
that  Lord  Mansfield  took  the  case  out  of  the  doctrine  as  to  pay- 
ments under  a  mistake  of  fact,  by  the  assumption  that  a  holder  who 
simply  presents  negotiable  paper  for  payment  makes  no  representa- 
tion as  to  the  signature,  and  that  the  drawee  pays  at  his  peril.  See 
Wilkinson  v.  Johnson,  3  Barn.  &  C.  428,  436;  Bernheimer  v.  Mar- 
shall, 2  Minn.  78,  84  (Gil.  61)  ;  Bank  of  St.  Albans  v.  Farmers'  & 
Mechanics'  Bank,  10  Vt.  141,  145,  146;  Ellis  v.  Trust  Co.,  4  Ohio 
St.  628,  662. 

The  ground  of  a  recovery  for  a  payment  under  a  mistake  of  fact 
is  that  the  existence  of  the  fact  supposed  was  the  conventional  basis 
or  tacit  condition  of  the  transaction.  If  parties  are  so  far  at  arm's 
length  that  each  takes  the  risk  of  what  he  does,  of  course  one  of 
them  cannot  recover  money  paid  because  he  finds  that  he  has  made 
a  mistake.  We  believe  that  now,  at  least,  especially  in  the  case  of 
a  bank,  it  is  a  matter  of  general  understanding  that,  when  the  holder 
of  a  check  in  no  way  contributes  to  the  deception,  the  bank  does 
take  the  risk  of  paying,  so  far  as  the  signature  is  concerned.  But, 
if  this  is  so,  mistake  disappears  as  a  ground  for  recovery,  and  there 
is  no  other.  It  is  vain  to  point  out  that  in  other  cases  more  or  less 
analogous  there  is  an  implied  representation,  e.  g.,  Railroad  Co.  v. 
Richardson,  135  Mass.  473.  The  grounds  for  difference  in  under- 
standing may  be  very  nice,  but,  even  if  the  decisions  had  originated 
the  difference  without  adequate  ground,  when  once  it  exists  its 
existence  is  a  sufficient  reason  for  continuing  to  decide  in  accordance 
with  it.  1 

*In  Bank  of  St.  Albans  v.  Farmers'  &  Mech.  Bank,  10  Vt.  141,  145  (1838), 
the  court  says :  "The  presentiment  of  a  bill  to  the  drawee  is  a  direct  appeal 
to  him  to  sanction  or  repudiate  it.  It  is  an  inquiry  as  to  its  genuineness, 
addressed  to  the  party,  who,  of  all  men,  is  supposed  best  able  to  answer  it, 
and  whose  decision  is  most  satisfactory.  He  is,  moreover,  the  person,  to 
whom  the  bill  itself  points,  as  the  legitimate  source  of  information  to  others, 
and  if  he  were  permitted  to  dishonor  a  bill,  after  having  once  honored  it, 
the  very  foundation  of  confidence  in  commercial  paper  would  be  shaken. 
There  is  a  wide  difference  between  such  a  transaction  and  the  passing  of 
paper  as  a  representative  of  money,  between  persons  equally  strangers  to  it, 
in  the  ordinary  course  of  business.  In  the  latter  case,  the  receiver  relies, 
in  a  measure,  upon  the  paper,  while  in  the  former,  the  case  is  reversed,  and 
the  holder  relies,  and  has  a  right  to  rely,  upon  the  decision  of  him  to  whom 
the  bill  is  addressed,  and  who  alone  is  to  determine  whether  it  shall  be  hon- 
ored or  not." 


r 


373/ 


NEGOTIABLE    INSTRUMENTS. 

GERMANIA  BANK  v.  BOUTELL  et  al. 
60  Minn.  189.— 1895. 

Action  by  the  Germania  Bank  of  Minneapolis  against  William  T. 
Boutell  and  Walter  D.  Boutell,  doing  business  as  Boutell  Bros., 
and  others.  From  an  order  sustaining  demurrers  to  the  complaint, 
plaintiff  appeals.  Affirmed. 

Mitchell,  J. — This  action  was  brought  to  recover  money  paid 
on  a  forged  check.  To  the  complaint  the  defendants  separately 
demurred,  on  the  ground  that  it  did  not  state  a  cause  of  action. 
This  appeal  is  from  an  order  sustaining  these  demurrers.  The  com- 
plaint is  very  prolix,  but  the  substance  of  its  allegations  is  as  fol- 
lows :  Osborne  &  Clark,  lumber  dealers  in  Minneapolis,  were  custo- 
mers of  the  plaintiff  bank,  with  which  they  kept  a  large  deposit. 
They  had  in  their  employ  a  man  named  Seymour,  at  a  salary  of  $7 
per  week,  "a  man  of  limited  means  and  small  personal  resources," 
which  facts  were  known  to  Boutell  Bros.  Boutell  Bros,  had  sold 
Seymour  some  goods  on  credit  on  the  installment  plan,  upon  which 
there  was  due  an  installment  of  $10.  During  business  hours  of 
April  nth,  Seymour  went  to  Boutell  Bros.'  place  of  business  in 
Minneapolis,  with  a  check  for  $457.90,  payable  to  his  own  order, 
purporting  to  be  drawn  by  his  employers,  Osborne  &  Clark,  on  plain- 
tiff bank ;  whereupon  Seymour  and  Boutell  Bros,  both  indorsed  the 
check  for  the  purpose  of  giving  it  credit  and  putting  it  in  circulation, 
and  to  enable  Seymour  to  pay  the  $10,  and  then  went  over  to  the  de- 
fendant bank,  and  presented  the  check  thus  indorsed  (Boutell  Bros, 
identifying  Seymour),  and  requested  the  bank  to  cash  it,  which  it 
did,  paying  the  money  to  Seymour  and  Boutell  Bros.  Although  the 
places  of  business  of  both  Osborne  &  Clark  and  of  plaintiff  were 
within  a  few  blocks,  and  of  ready  access,  Boutell  Bros,  made  no 
inquiry  to  ascertain  the  genuineness  of  the  check,  and  the  defendant 
bank  took  no  means  to  assure  itself  of  the  fact,  except  the  identifi- 
cation of  Seymour  by  Boutell  Bros,  and  the  indorsement  of  the 
check  by  the  latter.  The  next  day  the  defendant  bank  presented 
the  check  to  the  plaintiff,  which,  after  examining  the  signature  and 
believing  it  to  be  genuine,  induced  thereto  by  its  apparent  genuine- 
ness (it  not  being  possible  by  ordinary  care  to  detect  the  forgery), 
and  by  the  financial  standing  and  integrity  of  the  defendant  bank, 
which  presented  it,  and  of  Boutell  Bros.,  who  indorsed  it,  "in  the 
exercise  of  due  care  and  caution,"  paid  the  check.  It  is  also  alleged 
that  it  was  the  custom  and  practice  among  all  the  banks  in  Minne- 
apolis, well  known  to  the  defendants,  for  the  bank  upon  which  any 
check  purports  to  be  drawn  to  pay  it  when  presented  by  any  other 
bank  (provided  the  drawer  has  sufficient  funds),  relying  upon  the 
genuineness  of  the  check  and  of  all  prior  indorsements ;  also  not  to 
pay  a  check  "of  any  considerable  size"  purporting  to  be  drawn  by 
one  of  its  depositors  unless  the  party  presenting  it  is  identified,  "save 


374  MISTAKE   OF    FACT. 

when  indorsements  of  responsible  parties  known  to  the  drawee  bank 
are  indorsed  thereon."  On  April  24th  plaintiff  discovered  that  the 
sig-nature  of  Osborne  &  Clark  was  a  forgery,  and  immediately  noti- 
fied the  defendants  of  the  fact,  tendered  back  the  check,  and  demand- 
ed payment  of  the  amomit,  which  was  refused.  The  signature  of 
Osborne  &  Clark  had  been  forged  by  Seymour,  who  absconded 
April  1 2th,  the  same  day  on  which  plaintiff  paid  the  check,  but 
whether  before  or  after  is  not  alleged.  His  whereabouts  is  still  un- 
known. 

These  facts  present  the  question,  upon  which  so  much  has  of 
late  years  been  said  and  written,  whether  the  drawee  of  a  bill  of 
exchange,  or  the  banker  upon  whom  a  check  has  been  drawn,  who 
has  paid  a  bill  or  check  upon  which  the  drawer's  signature  has  been 
forged,  can,  upon  discovery  of  the  forgery,  recover  back  the  amount 
from  the  holder,  and  if  so,  under  what  circumstances  he  may  thus 
recover.  It  is  a  well-settled  rule  of  law  that  money  paid  under  a 
mistake  of  fact  may  be  recovered  back,  however  negligent  the  party 
paying  may  have  been  in  making  the  mistake,  unless  the  payment 
has  caused  such  a  change  in  the  position  of  the  other  party  that  it 
would  be  unjust  to  require  him  to  refund.  And  the  tendency  of 
the  modern  authorities  is  to  extend  rather  than  to  curtail  the  opera- 
tion of  this  rule.  One  generally  received  exception  to  the  rule  is 
that  where  the  drawee  of  a  bill  of  exchange,  or  the  banker  upon 
whom  a  check  has  been  drawn,  pays  a  bill  or  check  upon  which  the 
drawer's  signature  has  been  forged,  he  must  stand  the  loss,  and 
cannot  recover  back  the  amount,  if  the  party  to  whom  he  paid  it 
was  a  bona  fide  holder.  This  doctrine  was  established  in  England 
in  1762,  in  the  leading  case  of  Price  v.  Neal,  3  Burrows  1354;  in 
which  Lord  Mansfield  stopped  defendant's  counsel,  saying  the  case 
was  one  that  could  not  be  made  plainer  by  argument ;  that  it  was 
incumbent  upon  the  plaintiff  (the  drawee)  to  be  satisfied  that  the 
bill  drawn  upon  him  was  in  the  drawer's  hand  before  he  accepted 
or  paid  it. 

The  same  doctrine  was  firmly  established  in  the  commercial  law 
of  this  country  in  Bank  of  U.  S.  v.  Bank  of  Georgia,  10  Wheat. 
333,  in  which  Mr.  Justice  Story,  referring  to  Price  v.  Neal,  said: 
"After  some  research,  we  have  not  been  able  to  find  a  single  case 
in  which  the  general  doctrine  thus  asserted  has  been  shaken  or  even 
doubted."  And,  so  far  as  we  have  been  able  to  discover,  this  general 
doctrine  is  recognized  as  the  law  by  the  courts  of  every  state  in  the 
Union  except  Pennsylvania,  where  the  rule  has  been  changed  by 
statute.  The  doctrine  was  announced  and  applied  by  this  court  as 
early  as  Bernhcimer  v.  Marshall,  2  Minn.  78  (Gil.  61).  That  was 
a  case  of  a  forged  draft,  but  the  doctrine  is  equally  applicable  to  a 
forged  check.  Indeed,  if  there  is  any  difference  in  the  cases,  the 
reasons  upon  which  the  doctrine  rests  apply  with  more  force  to  the 
latter  than  the  former,  for  not  only  do  checks  pass  from  hand  to 
hand  as  money  more  frc(|ucntly  and  rapidly  than  do  drafts  or  or- 
dinary bills  of  exchange,  but  a  banker  is  "even  more  bound"  to  know 


NEGOTIABLE    INSTRUMENTS.  375 

a  customer's  handwriting  than  a  drawee  of  a  bill  of  exchange  is 
bound  to  know  the  drawer's.  Many  modern  text  writers,  some  of 
them  of  learning  and  ability,  have  assailed  the  correctness  of  this 
doctrine,  contending  that  the  general  rule  as  to  money  paid  under 
mistake  of  fact  should  appl}-,  and  that  the  law  ought  to  be  that  the 
bank,  although  at  fault  in  not  discovering  the  forgery  of  its  custo- 
mer's signature,  can  recover  even  from  an  innocent  holder,  if  he 
will  then  be  in  no  worse  condition  than  if  the  bank  had  refused  to 
pay  the  draft  or  check.  See  2  Pars.  Notes  &  B.  80 ;  Morse,  Banks, 
c.  33;  Daniel  Neg.  Inst.  c.  42;  also.  Am.  Law  Rev.  April  1875,  p. 
411,  and  note  to  People's  Bank  v.  Franklin  Bank,  17  Am.  St.  Rep. 
889  (88  Tenn.  299,  12  S.  W.  716). 

We  shall  not  enter  upon  a  consideration  of  the  soundness  of  the 
argument  against  the  doctrine,  or  as  to  which  rule  we  would  adopt 
if  the  question  was  res  Integra,  because  we  do  not  feel  at  liberty  to 
overrule  or  disregard  a  doctrine  so  well  established  and  so  firmly 
rooted  in  the  commercial  law  of  the  country.  If  the  rule  is  incorrect 
or  works  badly  in  practice,  its  change  must  be  left  to  the  legislature. 
We  may  say,  however,  that  the  opponents  of  the  doctrine  seem  to 
have  found  no  followers  among  the  courts.  We  may  also  suggest 
that  perhaps  the  courts  themselves  have  given  the  opponents  of  the 
doctrine  an  unnecessary  vantage  ground,  by  frequently  placing  it 
exclusively  on  the  narrow  ground  of  actual  negligence  on  the  part 
of  the  drawee  in  not  discovering  the  forgery,  because  he  was  bound 
to  know  the  signature  of  his  own  customer  or  correspondent.  It  is 
undoubtedly  true  that  he  is  in  better  position  than  a  stranger  to  know 
his  customer's  signature,  and  that  men  have  a  right  to  deal  with 
checks  and  drafts  on  that  assumption ;  but  it  does  not  seem  to  us 
that  the  doctrine  rests  entirely  on  this  narrow  basis  of  actual  negli- 
gence on  the  part  of  the  drawee.  The  money  of  the  commercial  world 
is  no  longer  coin.  The  exchanges  of  commerce  are  now  made  almost 
entirely  by  means  of  drafts  and  checks.  It  was  largely  in  deference 
to  this  fact  that  the  recovery  of  money  paid  on  paper  of  this  kind, 
to  which  the  drawer's  signature  was  forged,  was  made  an  exception 
to  the  general  rule  as  to  the  recovery  of  money  paid  under  a  mistake 
of  fact.  In  view  of  the  use  of  this  class  of  paper  as  money,  it  was 
considered  that  public  policy  required  that,  as  between  the  drawee 
and  good-faith  holders,  the  drawee  bank  should  be  deemed  the 
place  of  final  settlement  where  all  prior  mistakes  and  forgeries 
should  be  corrected  and  settled  once  for  all,  and,  if  not  then  cor- 
rected, payment  should  be  trei  "^ed  as  final ;  that  there  must  be  a  fixed 
and  definite  time  and  place  to  adjust  and  end  these  things  as  to 
innocent  holders ;  and  that  that  time  and  place  should  be  the  paying 
bank  and  the  date  of  payment ;  and  that,  if  not  done  then,  the  failure 
to  do  so  must  be  deemed  the  constructive  fault  of  the  payee  bank, 
which  must  take  the  consequences.  See  dissenting  opinion  of  Mr. 
Justice  Snodgrass  in  People's  Bank  v.  Franklin  Bank,  88  Tenn. 
299,  12  S.  W.  716. 

The  rule  that,  if  a  bank  pays  a  check  under  the  misconception 


-^■jd  MISTAKE    OF    FACT. 

that  it  has  funds  of  the  drawer,  it  cannot  recover  from  a  bona  Me 
holder,  but  must  look  to  the  drawer  alone  for  redress,  is  founded  on 
much  the  same  reasons.  There  is  not  as  much  force  as  may  at  first 
seem  in  the  suggestion  of  practical  objections  to  the  doctrine.  In 
large  commercial  centers,  where  vast  numbers  of  checks  have  to  be 
rapidly  exchanged  between  banks,  it  is  always  done  through  and 
under  the  clearing-house  rules,  adopted  by  the  banks  for  mutual 
convenience,  by  which  checks  paid  in  that  way  may  be  returned 
within  a  certain  time,  if  it  be  found  that  they  are  not  genuine  or  that 
the  drawer  had  no  funds.  And  the  doctrine  has  no  application  to 
cases  where,  as  is  common  in  cities,  a  customer  of  a  bank  deposits 
checks  purporting  to  be  drawn  on  other  banks.  Entirely  different 
principles  apply  to  such  cases.  But  while  the  general  doctrine  is  too 
well  established  to  be  overruled  or  disregarded,  yet  it  is  undoubtedly 
true  that  the  trend  of  the  modern  authorities  is  to  impose  upon  it 
some  limitations  and  modifications ;  so  that  it  is  not  always  easy 
to  definitely  state  when  a  case  falls  within  the  doctrine  or  comes 
within  the  general  rule  as  to  money  paid  by  mistake.  From  what 
examination  we  have  been  able  to  make  of  the  authorities,  we  have 
arrived  at  the  conclusion  that  there  are  very  few  well-considered 
cases  which  go  further  than  to  hold  that  the  bank  may  recover 
back  money  paid  on  a  check  to  which  the  signature  of  one  of  its 
customers  was  forged,  when  there  was  a  lack  of  good  faith  on  the 
part  of  the  payee  towards  the  bank,  as  when  he  knew  the  check 
was  forged,  or  knew  of  circumstances  casting  suspicion  on  its  genu- 
ineness not  known  to  the  bank,  and  which  he  did  not  communicate 
to  it,  or  where  the  holder  was  negligent  in  not  making  due  inquiry 
as  to  the  validity  of  the  check  before  he  took  it,  and  the  drawee, 
having  a  right  to  presume  that  he  had  made  such  inquiry,  was  itself 
thereby  excused  from  making  inquiry  before  paying  it.  In  the  first 
case  the  holder  is  really  a  party  to  the  fraud,  and  is  not  a  good-faith 
holder.  In  the  second  case,  he  has,  by  his  negligence,  contributed  to 
the  consummation  of  the  mistake  on  part  of  the  drawee  by  mislead- 
ing him. 

There  is  no  allegation  that  either  of  the  defendants  knew  or 
suspected  that  the  check  was  forged.  So  far  as  appears,  they  both 
acted  in  entire  good  faith.  All  that  is  claimed  against  either  is  neg- 
ligence. It  remains  only  to  consider  whether  either  is  charged  in 
the  complaint  with  any  act  of  negligence  in  failing  to  make  proper 
inquiry  as  to  the  genuineness  of  the  check,  and  which  the  plaintifif 
assumed,  and  had  a  right  to  assume,  that  they  had  made,  so  as  to 
excuse  it  for  not  making  the  investigation  as  to  the  genuineness  of 
its  own  customer's  signature  which  it  otherwise  would  have  made. 
So  far  as  the  defendant  bank  is  concerned,  there  is  only  one  side  to 
the  question.  When  it  was  requested  to  cash  a  check  purporting 
to  be  drawn  by  one  not  its  customer,  on  another  bank,  payable  to 
a  person  unknown  tn  it,  it  took  the  precautions,  which  any  prudent 
bank  would  have  taken,  to  have  the  payee  identified  and  the  check 
indorsed  by  a  resjionsiblc  party,  and  thereby  protect  itself  against 


NEGOTIABLE    INSTRUMENTS.  377 

loss  in  case  the  check  was  not  honored  when  presented  for  payment. 
This  is  just  what  any  bank  would  naturally  do,  and  has  a  right  to 
do,  under  such  circumstances,  instead  of  going  in  search  of  the 
maker  of  the  check  to  ascertain  from  him  if  his  signature  is  genuine, 
and  then  going  to  the  drawee  bank  to  ascertain  if  he  has  funds  on 
deposit  with  which  to  meet  it.  It  owed  the  plaintiff  no  duty  to  in- 
vestigate as  to  the  genuineness  of  the  signature  of  its  own  customer, 
and  the  plaintiff  had  no  right  to  assume  that  it  had  made  such  in- 
vestigation. It  seems  to  us  that  the  same  is  true  as  to  Boutell  Bros. 
The  distinction  must  be  kept  clearly  in  mind  between  their  duty  and 
responsibility  to  the  defendant  bank  or  any  other  bona  Ude  indorsee 
of  the  check,  and  their  duty  and  responsibility  to  the  plaintiff  bank, 
with  reference  to  the  genuineness  of  the  signature  of  its  own  custo- 
mer. By  indorsing  the  check,  Boutell  Bros,  undoubtedly  guaranteed 
to  the  defendant  bank  the  genuineness  both  of  Osborne  &  Clark's 
signature  and  of  Seymour's  indorsement  as  the  payee.  That  was  the 
very  purpose  of  their  indorsement.  And,  if  the  indorsement  of  Sey- 
mour had  proved  to  be  forged,  they  would  no  doubt  have  been 
liable  to  plaintiff  had  it  been  thus  led  to  pay  the  check  to  one  not 
the  owner  of  it ;  for  by  indorsing  it  they  guaranteed  to  all  persons, 
including  plaintiff,  the  geunineness  of  the  preceding  indorsement. 
But  upon  the  question  of  the  genuineness  of  the  signature  of  Osborne 
&  Clark,  the  drawee's  own  customers,  the  case  stands  upon  an  en- 
tirely different  footing.  Not  being  the  original  payees  of  the  check, 
the  indorsement  of  Boutell  Bros,  constituted  no  guaranty  or  repre- 
sentation to  the  drawee  that  the  signature  of  the  drawer  was  genu- 
ine ;  and  the  plaintiff  had  no  right  to  rely  on  it  as  such,  or  to  assume 
that  Boutell  Bros^  had  investigated  as  to  its  genuineness.  That  was 
a  matter  which  it  devolved  on  the  plaintiff  to  ascertain  for  itself 
when  the  check  was  presented.  In  fact,  the  complaint  negatives  the 
idea  that  the  plaintiff  acted  on  any  such  assumption ;  for  it  is  alleged 
that  it  did  examine  the  signature  with  due  care  and  caution,  that  it 
was  to  all  appearances  genuine,  and  that  it  was  not  possible  by  any 
ordinary  care  or  precaution  to  detect  the  forgery. 

Our  conclusion  is  that  as  to  both  demurrers  the  order  appealed 
from  must  be  affirmed. 

Canty,  J.  (dissenting) — I  cannot  concur  in  the  foregoing  opinion. 
Because  error  is  gray  with  age  is  no  reason  why  it  should  be  respect- 
ed or  followed.  It  seems  to  me  that  the  foregoing  opinion  is  a  mere 
apology  for  such  error,  and  this  is  true  of  the  opinion  in  most  of 
the  modern  cases  on  the  question  here  involved.  I  concede  that  il 
is  good  public  policy  to  hold  that  a  banker  should  know  the  signature 
of  his  depositor.  It  tends  to  greater  vigilance  on  the  part  of  the 
banker,  and  more  prompt  discovery  of  the  forgery,  which  makes 
the  business  of  forgery  more  dangerous  and  less  successful.  But 
it  does  not  follow  that  this  is  the  only  principle  involved  in  this  kind 
of  a  case,  or  that  it  should  overturn  and  exclude  all  other  well- 
established  principles  applicable  thereto.  There  is  no  stronger  or 
better  established  principle  of  law  or  public  policy  than  that  which 


378  MISTAKE   OF   FACT. 

holds  that  no  one  shall  be  allowed  to  retain  the  consideration  re- 
ceived by  him  on  a  forged  instrument,  however  innocent  he  may  be, 
unless  he  can  invoke  the  aid  of  the  doctrine  of  estoppel.  Even  when 
a  person  has  been  deceived  by  the  forgery  of  his  own  signature,  and 
has  paid  the  forged  obligation,  he  may  recover  back  the  money  so 
paid,  from  an  innocent  holder.  Welch  v.  Goodwin,  123  Mass.  71 ; 
2  Alorse,  Banks,  p.  768,  §'  464.  This  principle  tends  to  cause  greater 
vigilance  on  the  part  of  every  one  about  to  take  such  paper,  and  to 
prevent  him,  when  he  has  taken  it,  from  suppressing  his  suspicions, 
and  putting  the  paper  off  on  some  one  else,  instead  of  investigating 
the  matter  and  pursuing  the  guilty  parties.  Why  should  the  law  in 
such  a  case  offer  a  premium  on  attempting  to  put  the  paper  off  on 
the  drawee  bank?  The  money  of  a  bank  is  not  legitimate  plunder, 
and  a  person  receiving  it  through  mistake  and  without  consideration 
ought  not  to  be  entitled  to  retain  it.  The  mere  fact  that  a  bank  pays 
a  forged  check  drawn  upon  it  is  no  reason  why  it  should  lose  its 
money.  It  was  the  absolute  duty  of  the  bank  to  know  its  depositor's 
signature,  and  detect  the  forgery,  and  it  should  suffer  any  loss  caused 
by  its  failure  to  perform  that  duty ;  but  there  is  no  principle  of  law 
which  says  that,  when  such  failure  has  caused  no  loss,  the  bank  shall, 
as  a  mere  penalty,  forfeit  the  money  so  paid  by  it. 

The  transfer  of  negotiable  paper  by  one  holder  to  another  is  ac- 
companied by  an  implied  warranty  that  the  paper  is  genuine.  Brown 
V.  Ames,  59  Minn.  476,  61  N.  W.  448.  But,  when  a  bank  pays  a  check 
drawn  upon  it,  there  is  no  such  implied  warranty  that  the  signature 
of  the  maker  is  genuine.  On  the  contrary,  it  is  the  duty  of  the  bank 
to  ascertain,  when  the  check  is  presented,  whether  or  not  the  sig- 
nature to  it  is  genuine.  It  owes  this  duty  not  only  to  the  innocent 
holder  presenting  the  check,  but  also  to  all  prior  innocent  holders. 
If  it  fails  in  this  duty,  it  can  only  recover  back  the  money  so  paid  by 
it  on  the  ground  that  it  was  paid  and  received  by  mutual  mistake 
and  without  consideration,  and  that  none  of  the  successive  innocent 
holders  through  whose  hands  the  check  passed  will  suffer  any  loss 
by  reason  of  such  failure  if  compelled  to  return  the  consideration 
received  by  him  ;  that  is,  that  none  of  such  innocent  holders  will  be 
in  a  worse  position  when  he  has  returned  such  consideration  than  he 
would  be  if  the  check  had  not  been  paid  by  the  bank.  There  is  no 
reason  why  this  rule  should  lead  to  multiplicity  of  actions,  or 
result  in  conditions  too  complex  for  practical  solution.  When  the 
bank  brings  suit  against  the  last  holder  to  whom  it  paid  the  check, 
he  can  give  notice  of  the  suit  to  the  next  prior  holder  of  whom  he 
received  it,  and  who  is  liable  over  to  him  on  such  implied  warranty, 
and  thereby  bind  such  prior  holder  by  the  result  of  the  suit.  See 
T.ove  V.  Gibson,  2  Fla.  598;  Kip  v.  Brigham,  6  Johns.  158,  7  Johns. 
t68;  People  v.  Judges  of  Monroe,  T  Wend,  19;  Blasdale  v.  Babcock, 
T  Johns.  5x7;  Bigclow,  Estop.  84.  I  see  no  reason  why  the  second 
last  holder  of  the  check  cannot  in  like  manner  give  notice  of  the 
siu't  to  the  third  last  holder  of  it,  and  thereby  bind  him  by  the  result 
of  that  suit.     And  it  seems  to  me  that  the  defense  will  be  entitled 


NEGOTIABLE    INSTRUMENTS.  379 

to  plead  and  prove  the  existence  of  as  many  successive  innocent  prior 
holders  as  it  can,  and  thereupon  the  burden  should,  perhaps,  be 
thrown  on  the  plaintiff  bank  to  prove  that  none  of  these  holders 
will  be  in  a  worse  position  when  lie  has,  by  reason  of  the  recovery 
of  the  bank,  been  compelled  to  return  the  consideration  received  by 
him,  than  he  would  be  if  the  bank  had  never  paid  the  check. 


BANK  OF  COMMERCE  v.  THE  UNION  BANK. 
3  CoMST.  (N.  Y.)  230. — 1850. 

The  Bank  of  Commerce  brought  assumpsit  against  the  Union 
Bank,  to  recover  money  paid  by  mistake. 

On  the  1 8th  day  of  December,  1847,  the  New  Orleans  Canal  and 
Banking  Company  drew  a  draft  on  the  Bank  of  Commerce  in  New 
York,  payable  to  the  order  of  "J.  Durand,"  for  one  hundred  and 
five  dollars.  After  the  draft  was  issued  it  was  fraudulently  altered 
in  several  respects,  and  among  others,  by  the  substitution  of  the 
word  "thousand"  for  "hundred,"  and  the  name  "Bonnet"  instead  of 
"Durand,"  so  that  it  appeared  to  be  a  draft  for  one  thousand  and 
five  (instead  of  one  hundred  and  five)  dollars,  and  payable  to  the 
order  of  J.  Bonnet  (instead  of  J.  Durand).  In  this  altered  condi- 
tion, and  bearing  the  indorsement  "J.  Bonnet,"  the  Union  Bank  in 
New  York  received  the  draft  from  the  State  Bank  of  Charleston  for 
collection,  and  credited  the  amount  to  that  bank.  The  Bank  of  Com- 
merce on  the  draft  being  presented  by  the  Union  Bank,  paid  it  to 
the  latter.  Two  days  afterwards  the  Bank  of  Commerce  received 
advices  from  the  New  Orleans  Canal  and  Banking  Company,  and 
then  ascertained  the  alterations  in  the  draft.  Thereupon  the  draft 
was  returned  to  the  Union  Bank,  and  the  money,  which  had  been 
paid,  demanded ;  but  payment  was  refused. 

Ruggles,  J. — The  payment  of  a  bill  of  exchange  by  the  drawee 
is  ordinarily  an  admission  of  the  drawer's  signature,  which  he  is  not 
afterwards,  in  a  controversy  between  himself  and  the  holder,  at 
liberty  to  dispute ;  and  therefore  if  the  drawer's  signature  is  on  a 
subsequent  day  discovered  to  be  a  forgery,  the  drawee  cannot  compel 
the  holder  to  whom  he  paid  the  bill,  to  restore  the  money,  unless  the 
holder  be  in  some  way  implicated  in  the  fraud.  Price  v.  Neal,  3 
Burr.  1354.  This  rule  is  founded  on  the  supposed  negligence  of  the 
drawee  in  failing  by  an  examination  of  the  signature,  when  the  bill 
is  presented,  to  detect  the  forgery  and  refuse  payment.  The  drawee 
is  supposed  to  know  the  handwriting  of  the  drawer,  who  is  usually 
his  customer  or  correspondent.  As  between  him,  therefore,  and  an 
innocent  holder,  the  payer,  from  this  imputed  negligence,  must  bear 
the  loss.  In  Price  v.  Neal,  the  plaintiff  had  paid  to  Neal.  the  holder, 
two  bills  of  exchange,  purporting  to  be  drawn  on  him  by  Sutton, 


380  MISTAKE   OF    FACT. 

whose  name  was  forged.  On  discovery  of  the  forgery,  Price 
brought  his  action  against  Neal,  to  recover  back  the  money  as  paid 
by  mistake.  Lord  Mansfield,  in  deHvering  the  opinion  of  the  court 
in  favor  of  the  defendant,  said :  "It  was  incumbent  upon  the  plaintiff 
to  be  satisfied  that  the  bill  drawn  upon  him  was  the  drawer's  hand 
before  he  accepted  or  paid  it,  but  it  was  not  incumbent  upon  the 
defendant  to  inquire  into  it."  "Whatever  neglect  there  was,  was 
on  his  side.  It  is  a  misfortune  which  has  happened  without  the 
defendant's  fault  or  neglect." 

In  Wilkinson  v.  Lutwidge,  i  Stra.  648,  Lord  Chief  Justice  Pratt 
was  of  opinion  that  "acceptance  was  a  sufficient  acknowledgement 
of  the  drawer's  handwriting  on  the  part  of  the  acceptor,  who  must 
be  supposed  to  know  the  hand  of  his  own  correspondent."  So  the 
acceptance  of  a  bill,  whether  general,  or  for  honor,  or  supra  protest, 
after  sight  of  the  bill,  admits  the  genuineness  of  the  signature  of 
the  drawer ;  and  consequently  if  the  signature  of  the  drawer  turns 
out  to  be  a  forgery,  the  acceptance  will  nevertheless  be  binding, 
and  entitle  a  bona  fide  holder  for  value  and  without  notice  to  recover 
thereon  according  to  its  tenor.  Story  on  Bills,  §  262. 

But  it  is  plain  that  the  reason  on  which  the  above  rule  is  founded 
does  not  apply  to  a  case  where  the  forgery  is  not  in  counterfeiting 
the  name  of  the  drawer,  but  in  altering  the  body  of  the  bill.  There 
is  no  ground  for  presuming  the  body  of  the  bill  to  be  in  the  drawer's 
handwriting,  or  in  any  handwriting  known  to  the  acceptor.  In  the 
present  case,  that  part  of  the  bill  is  in  the  handwriting  of  one  of  the 
clerks  in  the  office  of  the  Canal  and  Banking  Company  in  New 
Orleans.  The  signature  was  in  the  name  and  handwriting  of  the 
cashier.  The  signature  is  genuine.  The  forgery  was  committed  by 
altering  the  date,  number,  amount  and  payee's  name.  No  case  goes 
the  length  of  saying  that  the  acceptor  is  presumed  to  know  the  hand- 
writing of  the  body  of  the  bill,  or  that  he  is  better  able  than  the 
indorsers  to  detect  an  alteration  in  it.  The  presumption  that  the 
drawee  is  acquainted  with  the  drawer's  signature,  or  able  to  ascer- 
tain whether  it  is  genuine,  is  reasonable.  In  most  cases  it  is  in  con- 
formity with  the  fact.  But  to  require  the  drawee  to  know  the  hand- 
writing of  the  residue  of  the  bill,  is  unreasonable.  It  would,  in  most 
cases,  be  requiring  an  impossibility.  Such  a  rule  would  be  not  only 
arbitrary  and  rigorous  but  unjust.  The  drawee  would  undoubtedly 
be  answerable  for  negligence  in  paying  an  altered  bill,  if  the  altera- 
tion were  manifest  on  its  face.  Whether  it  was  so  or  not  in  this 
case  was  properly  submitted  to  the  jury,  who  found  that  it  was  paid 
by  mistake  and  without  knowledge  of,  or  reason  to  suspect  the 
fraudulent  alterations.  It  would  have  been  difficult  to  find  otherwise 
upon  the  evidence,  the  bill  having  passed  through  the  defendant's 
bank,  and  the  Charleston  bank  without  suspicion.  If  the  forgery  had 
been  in  the  name  of  the  drawer,  it  might  not  perhaps  have  been 
incumbent  on  those  banks  to  scrutinize  the  bill,  because  they  might 
have  relied  on  the  drawee's  better  knowledge  of  the  hand ;  but  the 


NEGOTIABLE    INSTRUMENTS.  381 

forgery  being  in  the  body  of  the  bill  the  plaintiffs  were  not  more  in 
fault  than  the  defendants. 

The  greater  negligence  in  a  case  of  this  kind  is  chargeable  on  the 
party  who  received  the  bill  from  the  perpetrator  of  the  forgery. 
So  far  as  respects  the  genuineness  of  the  bill  each  indorsee  receives 
it  on  the  credit  of  the  previous  indorsers ;  and  it  was  the  interest  and 
duty,  in  the  present  case,  of  the  Bank  of  Charleston,  to  satisfy  itself 
that  the  bill  was  genuine,  or  that  its  immediate  indorser  was  able  to 
respond  in  case  the  bill  should  prove  to  be  spurious.  The  party  who 
fraudulently  passed  the  bill  cannot  avoid  his  liability  to  refund  on 
the  pretense  of  delay  in  detecting  the  forgery,  or  in  giving  notice  of 
it ;  and  if  reasonable  diligence  is  exercised  in  giving  notice  after  the 
forgery  comes  to  light,  it  is  all  that  any  of  the  parties  can  require. 
Canal  Bank  v.  The  Bank  of  Albany,  i  Hill  287,  292-3. 

In  Smith  v.  Mercer,  6  Taunt.  76,  in  Cocks  v.  Masterman,  9  B.  & 
C.  902,  and  in  Price  v.  Neal,  3  Ijurr.  1354,  the  plaintififs  who  paid 
the  forged  bills,  being  chargeable  with  a  knowledge  of  the  signature 
of  the  drawer  (which  was  forged),  were  held  to  have  paid  it  negli- 
gently and  without  due  caution  and  examination,  and  on  that  ground 
it  was  that  the  defendants  to  whom  they  pai'd  the  money  were  held 
not  liable  without  immediate  notice  of  the  forgery.  But  in  the  pres- 
ent case  no  such  negligence  is  imputable  to  the  plaintiffs,  the  plain- 
tiffs being  no  more  capable  of  detecting  the  forged  alteration  by  in- 
spection of  the  bill  than  either  of  the  other  parties. 

This  action  is  not  founded  on  the  bill  as  an  instrument  containing 
the  contract  on  which  the  suit  is  brought.  The  acceptor  can  never 
have  recourse  on  the  bill  against  the  indorsers.  But  the  plaintiffs' 
right  of  recovery  rests  on  equitable  grounds.  In  The  Canal  Bank  v. 
The  Bank  of  Albany,  the  principle  was  recognized  that  money  paid 
by  one  party  to  another  through  mutual  mistake  of  facts  in  respect 
to  which  both  were  equally  bound  to  inquire,  may  be  recovered  back. 
The  defendants  here,  as  in  that  case,  have  obtained  the  money  of  the 
plaintiffs  without  right  and  on  the  exhibition  of  a  forged  title  as 
genuine,  the  forgery  being  unknown  to  both  parties.  The  defend- 
ants ought  not  in  conscience  to  retain  the  money,  because  it  does  not 
belong  to  them  ;  and  for  the  further  reason  that  the  defendants  and 
the  previous  indorsers  have,  each,  on  the  same  principle,  their  remedy 
over  against  the  party  to  whom  they  respectively  paid  the  money, 
until  the  wrong-doer  is  finally  made  to  pay.  If  that  party  should  be 
irresponsible,  or  if  he  cannot  be  found,  the  loss  ought  to  fall  on  the 
party  who,  without  due  caution,  took  the  bill  from  him. 

In  cases  where  no  negligence  is  imputable  to  the  drawee  in  failing 
to  detect  the  forgery,  the  want  of  notice  within  the  ordinary  time  to 
charge  the  previous  parties  to  the  bill  is  excused,  provided  notice  of 
the  forgery  be  given  as  soon  as  it  is  discovered. 

Judgment  affirmed.'^ 

^In  Wilson,  administrator,  v.  Alexander.  4  III.  392  (1842),  "on  (he  trial 
before  a  jury,  it  was  proved  that  the  plaintiff  held  a  note  on  the  defendant, 


\  382;  MISTAKE   OF   FACT.  » 

COOKE  ET  AL.  V.  UNITED  STATES. 
91  U.  S.  389.-1875. 

Chief  Justice  Waite. — The  United  States  sued  Jay  Cooke  &  Co., 
in  this  action,  to  recover  back  money  paid  them  by  the  assistant  treas- 
urer in  New  York  for  the  purchase  or  redemption  before  maturity, 
under  the  Act  of  August  12,  1866  (14  Stat.  31),  of  what  purported 
to  be  eighteen  7-30  treasury  notes,  issued  under  the  authority  of  the 
act  of  March  3,  1865  (13  Stat,  468),  but  which  it  is  alleged  were 
counterfeit.  Cooke  &  Co,  insist  that  if  they  honestly  believed  the 
notes  in  question  were  genuine,  and,  so  believing,  in  good  faith 
passed  them  to  the  assistant  treasurer,  and  he,  under  a  like  belief, 
and  with  like  good  faith,  received  and  paid  for  them,  there  can  be  no 
recovery,  even  though  they  may  have  been  counterfeit.  As  this  de- 
fense meets  us  at  the  threshold  of  the  case,  it  is  proper  that  it  should 
be  first  considered. 

It  was  conceded  in  the  argument  that  when  the  United  States 
become  parties  to  commercial  paper  they  incur  all  the  responsibilities 
of  private  persons  under  the  same  circumstances.  This  is  in  accord- 
ance with  the  decisions  of  this  court.  The  Floyd  Acceptances,  7 
Wall,  557;  United  States  v.  Bk,  of  Metropolis,  15  Pet,  377.  As 
was  well  said  in  the  last  case,  "From  the  daily  and  unavoidable  use 
of  commercial  paper  by  the  United  States,  they  are  as  much  inter- 
ested as  the  community  at  large  can  be  in  maintaining  these  princi- 
ples." It  was  also  conceded  that  genuine  treasury  notes,  like  those 
now  in  question,  were,  before  their  maturity,  part  of  the  negotiable 
commercial  paper  of  the  country.  We  so  held  at  the  last  term,  in 
Vermilye  &  Co.  v.  Express  Co,,  21  Wall.  138. 

It  is,  undoubtedly,  also  true,  as  a  general  rule  of  commercial  law, 
that  where  one  accepts  forged  paper  purporting  to  be  his  own,  and 

made  to  the  plaintiff's  intestate;  that  the  defendant  paid  the  plaintiff  the 
amount  of  the  note,  and  took  it  up,  passing  to  him  in  part  payment,  a  note 
for  $150,  purporting  to  be  executed  by  the  intestate  payable  to  Isaac  Krieder, 
by  him  assigned  to  Joseph  Allen,  and  by  Allen  assigned  to  the  defendant. 
It  was  further  shown,  that  the  note  was  a  forgery;  but  it  was  admitted  by 
the  parties,  that  the  defendant,  at  the  time  of  the  transfer,  had  no  knowledge 
that  it  was  forged."  On  appeal  the  court  said :  "A  person  who  appears  to 
be  a  contracting  party  to  forged  negotiable  paper,  is  charged  with  a  knowl- 
edge of  its  genuineness,  and  acts  at  his  peril,  when  called  upon  by  an  inno- 
cent holder,  for  performance  of  the  contract.  If  he  accepts,  or  promises  to 
pay,  he  is  not  permitted  to  repudiate  his  act  because  of  the  forgery,  but  is 
bound  to  perform  it.  If  he  pays,  he  cannot  recover  back  the  money;  he 
takes  upon  hims<'lf  the  risk  of  the  genuineness  of  the  instrument.  As  be- 
tween other  persons,  who  are  not  connected  with  the  paper  as  parties,  and 
stand  in  eriual  relations,  each  having  the  same  means  of  ascertaining  its  gen- 
uineness, the  rule  is  essentially  different;  the  question  of  authenticity  is  at 
the  risk  of  the  person  passing  the  paper.  *  *  *  We  are  of  the  opinion 
it  would  be  carrying  the  rule  to  an  unreasonable  extent,  to  charge  the  admin- 
istrator with  knowledge  of  the  genuineness  of  an  instrument,  to  which  the 
name  of  his  intestate  purports  to  be  affixed,  as  maker." 


NEGOTIABLE    INSTRUMENTS.  383 

pays  it  to  a  holder  for  value,  he  cannot  recall  the  payment.  The 
operative  fact  in  this  rule  is  the  acceptance,  or  more  properly,  per- 
haps, the  adoption  of  the  paper  as  genuine  by  its  apparent  maker. 
Often  the  bare  receipt  of  the  paper  accompanied  by  payment  is  equiv- 
alent to  an  adoption  within  the  meaning  of  the  rule  ;  because,  as  every 
man  is  presumed  to  know  his  own  signature,  and  ought  to  detect  its 
forgery  by  simple  inspection,  the  examination  which  he  can  give 
when  the  demand  upon  him  is  made  is  all  that  the  law  considers 
necessary  for  his  protection.  He  must  repudiate  as  soon  as  he  ought 
to  have  discovered  the  forgery,  otherwise  he  will  be  regarded  as 
accepting  the  paper.  Unnecessary  delay  under  such  circumstances 
is  unreasonable ;  and  unreasonable  delay  is  negligence,  which  throws 
the  burden  of  the  loss  upon  him  who  is  guilty  of  it,  rather  than  upon 
one  who  is  not.  The  rule  is  thus  well  stated  in  Gloucester  Bank 
V.  Salem  Bank,  17  Mass.  45:  "The  party  receiving  such  notes  must 
examine  them  as  soon  as  he  has  opportunity,  and  return  them  im- 
mediately: if  he  does  not,  he  is  negligent;  and  negligence  will  de- 
feat his  action." 

When,  therefore,  a  party  is  entitled  to  something  more  than  a 
mere  inspection  of  the  paper  before  he  can  be  required  to  pass 
finally  upon  its  character, — as,  for  example,  an  examination  of 
accounts  or  records  kept  by  him  for  the  purposes  of  verification, — 
negligence  sufficient  to  charge  him  with  the  loss  cannot  be  claimed 
until  this  examination  ought  to  have  been  completed.  If,  in  the 
ordinary  course  of  business,  this  might  have  been  done  before  pay- 
ment, it  ought  to  have  been,  and  payment  without  it  will  have 
the  effect  of  acceptance  and  adoption.  But  if  the  presentation  is 
made  at  a  time  when,  or  at  a  place  where,  such  an  examination 
cannot  be  had,  time  must  be  allowed  for  that  purpose ;  and,  if  the 
money  is  then  paid,  the  parties,  the  one  in  paying  and  the  other 
in  receiving  payment,  are  to  be  understood  as  agreeing  that  a  re- 
ceipt and  payment  under  such  circumstances  shall  not  amount  to 
an  adoption,  but  that  further  inquiry  may  be  made,  and,  if  the 
paper  is  found  to  be  counterfeit,  it  may  be  returned  within  a  reason- 
able time.  What  is  reasonable  must  in  every  case  depend  upon 
circumstances ;  but,  until  a  reasonable  time  has  in  fact  elapsed,  the 
law  will  not  impute  negligence  on  account  of  delay.  So,  too,  if  the 
paper  is  received  and  paid  for  by  an  agent,  the  principal  is  not 
charged  unless  the  agent  had  authority  to  act  for  him  in  passing 
upon  the  character  of  the  instrument.  It  is  the  negligence  of  the 
principal  that  binds ;  and  that  of  the  agent  has  no  effect,  except  to 
the  extent  that  it  is  chargeable  to  the  principal. 

Laches  is  not  imputable  to  the  government,  in  its  character  as 
sovereign,  by  those  subject  to  its  dominion.  United  States  v.  Kil- 
patrick,  9  Wheat.  735 ;  Gibbons  v.  United  States,  8  Wall.  269. 
Still  a  government  may  suffer  loss  through  the  negligence  of  its 
officers.  If  it  comes  down  from  its  position  of  sovereignty,  and 
enters  the  domain  of  commerce,  it  submits  itself  to  the  same  laws 
that  govern  individuals  there.     Thus,  if  it  becomes  the  holder  of 


384 '>  MISTAKE    OF    FACT, 

a  bill  of  exchange,  it  must  use  the  same  diligence  to  charge  the 
drawers  and  indorsers  that  is  required  of  individuals ;  and,  if  it 
fails  in  this,  its  claim  upon  the  parties  is  lost.  United  States  v. 
Barker,  12  Wheat.  559.  Generally,  in  respect  to  all  the  commercial 
business  of  the  government,  if  an  officer  specially  charged  with  the 
performance  of  any  duty,  and  authorized  to  represent  the  government 
in  that  behalf,  neglects  that  duty,  and  loss  ensues,  the  government 
must  bear  the  consequences  of  his  neglect.  But  this  cannot  happen 
until  the  officer  specially  charged  with  the  duty,  if  there  be  one,  has 
acted,  or  ought  to  have  acted.  As  the  government  can  only  act 
through  its  officers,  it  may  select  for  its  work  whomsoever  it  will ; 
but  it  must  have  some  representative  authorized  to  act  in  all  the 
emergencies  of  its  commercial  transactions.  If  it  fail  in  this,  it 
fails  in  the  performance  of  its  own  duties,  and  must  be  charged  with 
the  consequences  that  follow  such  omissions  in  the  commercial 
world.    *     *     * 

Mr.  Justice  Clifford  (with  whom  concurred  Mr,  Justice  Field 
and  Mr,  Justice  Br.\dley),  dissenting — I  dissent  from  the  opinion 
of  the  court  in  this  case, — 

1.  Because  I  am  of  the  opinion  that  the  United  States  are  not 
liable  for  forged  paper  under  any  circumstances, 

2,  Because  I  am  of  the  opinion  that  the  United  States  are  not 
liable  for  its  paper-promises  fraudulently  or  surreptitiously  put  into 
circulation,  not  even  if  the  fraudulent  act  was  perpetrated  by  treas- 
ury officials.^ 


RIVERSIDE  BANK  v.  FIRST  NAT.  BANK  OF  SHENAN- 
DOAH. 

74  Fed.  276;  38  U.  S.  App.  674. — 1896. 

In  error  to  the  circuit  court  of  the  United  States  for  the  south- 
ern district  of  New  York. 

Error  is  assigned  of  the  ruling  of  the  trial  judge  in  directing 
the  jury  to  find  a  verdict  for  the  defendant.     The  defendant  was 

^In  Welch  v.  Goodwin,  123  Mass.  71,  "jj  (1877),  the  court  says:  "The 
question  which  we  are  called  upon  to  decide  is,  whether,  under  any  circum- 
stances, a  party  may  recover  back  money  paid  upon  a  security  bearing  a 
forged  signature  of  himself,  supposing  it,  at  the  time  of  payment,  to  be  his 
own  genuine  signature.  We  can  have  no  doubt  that  he  may.  This  is  en- 
tirely clear  in  case  he  was  induced  to  make  the  payment  by  fraud  or  mis- 
representation. Nor  is  it  necessary  that  fraud  or  misrepresentation  should 
exist.  An  innocent  mistake,  whether  arising  from  natural  or  temporary  in- 
firmity or  otherwise,  made  without  fault  upon  his  part,  entitles  him  to  the 
same  relief.  How  far  this  right  would  be  affected  by  neglect  upon  his  part 
to  give  prompt  notice  of  the  mistake,  or  by  any  change  affecting  the  situa- 
tion or  rights  of  the  person  to  whom  the  payment  is  made,  we  are  not 
called  upon  to  consider.  Here  notice  was  given  immediately  upon  discover- 
ing the  forgery." 


NEGOTIABLE    INSTRUMENTS.  385 

the  owner,  through  a  purchase  for  value,  and  in  due  course  of  busi- 
ness, of  a  promissory  note  dated  May  2,  1887,  made  by  Liebler  & 
Co.  to  the  order  of  and  indorsed  by  Yuenghng,  and  payable  four 
months  after  date  at  the  banking  house  of  the  plaintiff.  The  note 
was  made  merely  for  the  accommodation  of  Yuengling.  Shortly  be- 
fore maturity  the  defendant  forwarded  the  note  for  collection  to  its 
correspondent  at  New  York  City,  the  National  Park  Bank,  and  that 
bank,  through  its  uptown  collecting  agent,  on  September  3,  1887, 
presented  the  note  to  the  plaintiff,  with  a  request  for  certification. 
Liebler  &  Co.  were  customers  of  the  plaintiff,  and  the  plaintiff,  sup- 
posing the  account  of  the  firm  to  be  good  for  the  amount  of  the 
note,  made  the  certification.  Shortly  afterwards  the  plaintiff*  dis- 
covered that  in  fact  the  account  of  Liebler  &  Co.  was  not  good  for 
the  amount  of  the  note.  Thereupon  plaintiff  endeavored  to  ascertain 
what  bank  was  the  owner  of  the  note  or  had  caused  it  to  be  pre- 
sented for  certification,  but  was  unable  to  do  so  until  late  in  the 
afternoon  of  September  5th.  On  the  morning  of  September  6th 
plaintiff  notified  the  National  Park  Bank  that  the  note  had  been 
certified  by  mistake,  and  that  at  the  time  plaintiff  was  not  in  funds 
of  Liebler  &  Co.  sufficient  to  pay  it,  and  requested  that  bank  to 
withhold  the  note  from  its  exchanges  for  the  clearing  house ;  but 
that  bank  refused  to  withhold  the  note.  The  First  National  Bank 
was  the  clearing-house  bank  for  the  plaintiff,  and  by  the  rules  of 
the  clearing  house  was  obligated  to  pay  all  items  against  banks  for 
which  it  cleared  in  the  exchanges.  When  the  note  was  sent,  with 
the  other  exchanges  of  the  National  Park  Bank,  to  the  clearing 
house,  the  First  National  Bank  paid  it  conformably  with  the  rules. 
The  rules  of  the  clearing  house  provide  that:  "Errors  of  the  ex- 
changes, and  claims  arising  from  return  of  checks  or  from  any 
other  cause,  are  to  be  adjusted  directly  between  the  banks  who  are 
parties  to  them,  and  not  through  the  clearing  house ;  the  association 
being  in  no  way  responsible  in  respect  to  them.  All  checks,  drafts, 
notes,  or  other  items  in  the  exchanges  returned  as  not  good  or 
missent  shall  be  returned  the  same  day  directly  to  the  bank  from 
whom  they  were  received,  and  the  said  bank  shall  immediately  re- 
fund to  the  bank  returning  the  same  the  amount  which  it  has  re- 
ceived through  the  clearing  house  for  said  check,  draft,  notes, 
or  other  items  so  returned  to  it,  in  specie  or  legal  tender  notes." 
The  First  National  Bank  did  not  return  the  note  to  the  National 
Park  Bank,  but  on  September  6th  the  plaintiff  caused  it  to  be 
formally  presented  for  payment  and  protested  for  nonpayment,  giv- 
ing notice  thereof  to  Yuengling.  The  plaintiff  produced  the  note, 
and  offered  to  surrender  it  to  the  defendant. 

Wallace,  Circuit  Judge  (after  stating  the  facts  as  above). — We 
are  unable  to  discover  any  ground  upon  which  the  plaintiff  was 
entitled  to  recover.  The  certification  of  the  note  by  the  plaintiff 
was  an  agreement  to  pay  the  amount,  and  the  contract  can  no  more 
be  rescinded  than  could  any  other  contract  because  one  of  the  parties 
Woodruff's  Cases — 25 


386  MISTAKE    OF    FACT. 

in  making  it  was  under  a  misapprehension  of  fact.  A  note  made 
payable  at  a  bank  where  the  maker  keeps  an  account  is  equivalent 
to  a  check  drawn  by  him  upon  the  bank ;  and  the  bank,  if  in  funds, 
owes  him  a  duty  to  pay  it  on  presentation.  Aetna  Nat.  Bank  v. 
Fourth  Nat.  Bank,  46  N.  Y.  88;  Indig  v.  Bank,  80  N.  Y.  100.  The 
certification  of  a  check  drawn  upon  a  bank  is  equivalent  to  the 
acceptance  of  a  bill  of  exchange,  and  imposes  upon  the  bank  an 
obligation  to  pay  the  amount  for  which  the  check  is  drawn  to  the 
holder,  upon  demand,  at  any  time  before  the  statute  of  limitations 
attaches.  Farmers'  &  Mechanics'  Bank  v.  Butchers'  &  Drovers' 
Bank,  16  N.  Y.  125.  In  Merchants'  Bank  v.  State  Bank,  10  Wall. 
604,  the  court  used  this  language : 

*'By  the  law  merchant  of  this  country  the  certificate  of  the  bank 
that  a  check  is  good  is  equivalent  to  acceptance.  It  implies  that  the 
check  is  drawn  upon  sufficient  funds  in  the  hands  of  the  drawee, 
that  they  have  been  set  apart  for  its  satisfaction,  and  that  they  shall 
be  so  applied  whenever  the  check  is  presented  for  payment.  It  is 
an  undertaking  that  the  check  is  good  then,  and  shall  continue 
good  ;  and  this  agreement  is  binding  on  the  bank  as  its  notes  of 
circulation,  a  certificate  of  deposit  payable  to  the  order  of  the  de- 
positor, or  any  other  obligation  it  can  assume." 

In  Meads  v.  Bank,  25  N.  Y.  143,  it  was  held  that  the  certification 
as  good  of  a  promissory  note  payable  at  bank,  where  the  course  of 
business  between  banks  is,  instead  of  actually  paying  notes  of  cus- 
tomers, when  in  funds,  on  presentment,  to  mark  them  as  good,  and 
settle  in  the  exchanges,  is  an  absolute  promise  to  pay ;  not  the 
agreement  to  pay  the  debt  of  another,  but  the  engagement  of  the 
bank  to  pay  its  own  debt  to  the  holder  of  the  note.  The  certifica- 
tion entitles  the  holder  to  suspend  any  remedy  against  the  maker, 
and  relax  steps  to  charge  the  indorser  of  the  paper.  The  bank  has 
authority  from  the  note  itself  to  apply  to  its  payment  the  funds  of 
the  maker  (Kymer  v.  Laurie,  18  Law  J.  Q.  B.  218),  and  when  the 
holder  accepts  the  certification  the  customer  becomes  a  debtor  to 
the  bank.  Thus  the  contract  implied  by  the  certification  has  both 
the  elements  of  a  good  consideration,  a  resulting  disadvantage  to  the 
promisee,  and  an  accruing  advantage  to  the  promisor.  Money  paid 
under  a  mistake  of  fact  is  recoverable  of  the  party  receiving  it,  be- 
cause good  conscience  forbids  him  to  retain  that  which  justly  be- 
longs to  the  other  party ;  but  the  principle  has  no  application  to 
the  case  where. the  recipient  has  a  right  to  retain  the  money  because 
it  has  been  paid  pursuant  to  a  contract  which  he  was  entitled  to  en- 
force. Assuming  that  the  certification  of  the  note,  and  its  pay- 
ment through  the  clearing  house,  was  equivalent  to  a  payment  by 
the  plaintiff  over  its  counter  to  the  defendant,  the  case  falls  within 
one  of  those  exceptions  to  the  general  right  to  recover  back  money 
paid  by  mistake  which  are  found  in  the  law  of  negotiable  paper. 
One  of  these  exceptions  is  that  the  drawee  of  a  bill  of  exchange  is 
presumed  to  know  the  signature  of  the  drawer,  and  payment  by  the 
drawee  of  the  bill  is  ordinarily  an  admission  of  the  genuineness  of 


NEGOTIABLE    INSTRUMENTS.  387 

the  sig-nature,  which  he  is  not  afterwards,  in  a  controversy  between 
himself  and  the  holder,  at  liberty  to  dispute.  Another  exception, 
recognized  by  the  decided  weight  of  authority,  is  that  the  payment 
of  a  check  or  of  a  note  by  the  bank  at  which  it  is  made  payable, 
although  made  under  misapprehension  of  the  state  of  the  maker's 
account  with  the  bank,  concludes  the  bank  as  against  the  holder 
of  the  paper.  Bolton  v.  Richard,  6  Term  R.  139;  Aiken  v.  Short,  i 
Hurl.  &  N.  210 ;  Levy  v.  Bank,  4  Dall.  236 ;  Peterson  v.  Bank,  52 
Pa.  St.  206 ;  Oddie  v.  Bank,  45  N.  Y.  735 ;  Bank  v.  Swift,  70  Md. 
515,  17  Atl.  336;  Bank  v.  Burkham,  32  Mich.  328.  The  cases  of 
Bank  v.  Wetherald,  36  N.  Y.  335,  and  National  Park  Bank  v.  Steele 
&  Johnson  Manuf'g  Co.,  58  Hun,  81,  11  N.  Y.  Supp.  538,  are  cited 
as  authorities  to  the  contrary.  In  Bank  v.  Wetherald  the  question 
was  not  whether  the  money  could  be  recovered  back  from  the  party 
to  whom  it  had  been  paid,  but  whether  a  payment  made  to  that 
party,  the  holder  of  the  note,  after  the  bank  had  discovered  its 
mistake,  and  made  to  enable  the  bank  to  resume  the  control  of  the 
paper,  and  take  steps  to  charge  the  indorsers,  was  an  extinguish- 
ment of  the  note.  That  adjudication  is,  therefore,  not  in  point. 
The  case  of  National  Park  Bank  v.  Steele  &  Johnson  Manuf'g  Co. 
is  in  point,  and  is  entitled  to  respectful  consideration,  although  not 
a  judgment  of  the  court  of  last  resort ;  but  we  are  unable  to  accede 
to  its  conclusions.  ^ 

Upon  principle,  where  the  holder  of  a  note  presents  it  at  the  bank 
at  which  it  is  made  payable,  receives  the  money,  and  surrenders  the 
paper,  the  transaction  is,  in  effect,  a  purchase  from  the  holder.  It 
is  a  completed  transaction,  which  cannot  be  rescinded  except  for 
fraud,  or  in  case  of  mutual  mistake.  Where  forged  paper  is  deliv- 
ered, the  consideration  fails  and  a  different  rule  obtains.  A  case 
strictly  analogous  is  where  a  bank  accepts  the  check  of  a  customer, 
and  credits  the  amount  to  the  account  of  the  depositor.  Of  such  a 
case  the  supreme  court  used  this  language : 

"When  a  check  on  itself  is  offered  to  a  bank  as  a  deposit,  the  bank 
has  the  option  to  accept  or  reject  it,  or  to  receive  it  upon  such  con- 
ditions as  may  be  agreed  upon.  If  it  be  rejected,  there  is  no  room 
for  any  doubt  or  question  between  the  parties.  If,  on  the  other 
hand,  the  check  is  offered  as  a  deposit,  and  received  as  a  deposit, 
there  being  no  fraud,  and  the  check  genuine,  the  parties  are  no  less 
bound  and  concluded  than  in  the  former  case.  Neither  can  disavow 
or  repudiate  what  has  been  done.   The  case  is  simply  one  of  an  ex- 

^In  addition  to  the  New  York  cases  quoted  in  this  paragraph,  see  Whit- 
ing et  al.  V.  City  Bank,  yj  N.  Y.  z^^z  (i879).  In  this  case  the  court  says:. 
"If  the  payment  was  not  made  by  the  bank  by  mistake,  but  was  made 
voluntarily  on  the  credit  of  the  maker  of  the  note,  it  is  very  clear  that  it 
could  not  be  retracted.  The  payment  of  the  note  under  such  circumstances 
discharged  the  obligation  of  the  indorser,  and  that  obligation  could  not  be 
revived  by  the  bank,  nor  by  any  transaction  between  it  and  the  plaintiffs. 
*  *  *  *  There  is  no  legal  presumption  that  payments  made  by  a  bank 
are  made  by  mistake,  even  when  the  account  of  the  party  for  whom  they 
are  made  is  not  good.    The  fact,  if  material,  must  be  proved." 


388  MISTAKE    OF    FACT. 

ecuted  contract.  There  are  the  requisite  parties,  the  requisite  con- 
sideration, and  the  requisite  concurrence  and  assent  of  the  minds 
of  those  concerned."     Bank  v.  Burkhardt,   100  U.  S.  686. 

To  permit  a  bank  which  has  paid  a  note  or  check  of  a  customer 
to  rescind  the  transaction  because  it  discovers  that  it  was  mistaken 
in  the  state  of  the  customer's  account,  would,  as  is  pointed  out  by 
Judge  Cooley  in  Bank  v.  Burkham,  supra,  reverse  the  rule  of  com- 
mercial law,  and  transfer  from  the  acceptor  to  the  payee  the  re- 
sponsibility which  the  former  assumes  by  the  acceptance  and  the 
loss,  which  should  be  left  where  it  fell.    He  said  : 

"We  think  it  would  be  an  exceedingly  unsafe  doctrine  in  com- 
mercial law  that  one  who  has  discounted  a  bill  in  good  faith,  and 
received  notice  of  payment,  the  strongest  possible  assurance  that 
it  was  drawn  with  proper  authority  should  afterwards  hold  the 
moneys  subject  to  such  a  showing  as  the  drawee  might  be  able  to 
make  as  to  the  influences  operating  upon  his  mind  to  induce  him  to 
make  payment.  The  beauty  and  value  of  the  rules  governing  com- 
mercial paper  consists  in  their  perfect  certainty  and  reliability.  They 
would  be  worse  than  useless  if  the  ultimate  responsibility  for  such 
paper,  as  between  payee  and  drawee,  both  acting  in  good  faith, 
could  be  made  to  depend  on  the  motives  which  influenced  the  latter 
to  honor  the  paper." 

The  facts  of  this  case  illustrate  the  truth  of  these  observations. 
The  defendant,  relying  upon  a  certification  by  the  plaintiff,  took 
no  steps  to  charge  the  indorser  upon  the  note ;  and,  if  this  action 
could  be  maintained,  in  order  to  regain  the  situation  in  which  it 
was  placed  by  the  act  of  the  plaintiff,  would  be  obliged  to  resort 
to  the  uncertain  chances  of  a  litigation  with  the  indorser.  Treat- 
ing the  case  as  one  in  which  the  money  was  paid  by  the  plaintiff 
over  its  counter  to  the  defendant,  the  language  of  the  court  in  Aiken 
V.  Short  is  apposite  : 

"The  plaintiffs,  having  voluntarily  parted  with  their  money  to 
purchase  that  which  the  defendant  had  to  sell,  though  no  doubt  it 
turned  out  different  to  and  of  less  value  than  what  they  expected, 
cannot  maintain  the  action."     *     *     * 

The  trial  judge  properly  directed  a  verdict  for  the  defendant,  and 
the  judgment  should  be  affirmed.  ^ 

^Accord,  Chambers  v.  Miller,  13  C.  B.  N.  S.  125  (1862). 


agent's  authority.  389 

8.      MISTAKE   AS   TO   AGENt's    AUTHORITY. 

HAWTAYNE  v.  BOURNE. 
7  M.  &  W.  (ExCH.)  595-— 1841. 

Debt  for  money  lent,  and  on  an  account  stated.  Plea  nunquam 
indebitatus. 

The  defendant,  who  resides  at  Liverpool,  was  the  holder  of  100 
shares  in  a  company  established  for  the  working  of  a  mine  called 
the  Trewolvas  Mine,  in  the  parish  of  St.  Columb  Major,  Cornwall. 
The  mine  was  managed  by  an  agent,  appointed  by  the  directors  of 
the  company  for  that  purpose.  In  March,  1839,  in  consequence  of 
the  shareholders  not  having  paid  up  the  calls  regularly,  the  concern 
fell  into  difficulties,  and  the  agent,  from  want  of  funds,  became 
unable  to  pay  the  laborers ;  a  considerable  number  of  whom,  their 
wages  being  in  arrear  applied  to  the  magistrates,  and  obtained  war- 
rants of  distress  upon  the  materials  belonging  to  the  mine.  The 
agent,  finding  that  these  warrants  were  about  to  be  put  into  execu- 
tion, applied  in  the  name  of  the  company,  but  in  fact  upon  his  own 
responsibility,  and  without  the  knowledge  of  the  shareholders,  to 
the  St.  Columb  branch  of  the  Western  District  Banking  Company 
for  a  loan  of  £400  for  three  months,  which  was  advanced  accordingly 
and  placed  by  the  bank  to  the  credit  of  the  company,  and  out  of  it 
the  arrears  of  wages  w^ere  discharged.  To  recover  the  balance  of 
that  sum  the  present  action  was  brought.  There  was  some  evidence 
of  a  conversation  between  the  defendant  and  the  agent,  in  which 
the  former  had  asked  whether  they  could  not  get  money  from  the 
bank  to  keep  the  concern  going ;  but  this  evidence  was  not  left  to 
the  jury.  The  learned  judge,  in  summing  up,  stated  to  the  jury, 
that  although  under  ordinary  circumstances  an  agent  could  not, 
without  express  authority,  borrow  money  in  the  name  of  his  prin- 
cipal so  as  to  bind  him,  yet,  if  it  became  absolutely  necessary  to 
raise  money  in  order  to  preserve  the  property  of  the  principal,  the 
law  would  imply  an  authority  in  the  agent  to  do  so,  to  the  extent 
of  that  necessity ;  and  he  left  it  to  the  jury  to  say  whether  the 
pressure  on  the  concern  was  such  as  to  render  the  advance  of  this 
money  a  case  of  such  necessity.    The  jury  found  for  the  plaintiff. 

Parke,  B. — This  is  an  action  brought  by  the  plaintiffs,  who  are 
bankers,  to  recover  from  the  defendant,  as  one  of  the  proprietors  of 
the  Trew^olvas  Mine,  a  mine  carried  on  in  the  ordinary  way,  the 
balance  of  a  sum  of  £400,  advanced  by  them  to  the  agent  appointed 
by  the  company  of  proprietors  for  the  management  of  the  mine. 
Now  the  extent  of  the  authority  conferred  upon  the  agent  by  his 
appointment  was  this  only — that  he  should  conduct  and  carry  on  the 
affairs  of  the  mine  in  the  usual  manner;  there  is  no  proof  of  ex- 
press authority  to  borrow  money  from  bankers  for  that  purpose,  or 
that  it  w^as  necessary  in  the  ordinary  course  of  the  undertaking ;  and 


390  MISTAKE    OF    FACT. 

certainly  no  such  authority  could  be  assumed.  There  are  two 
grounds  on  which  it  is  said  the  defendant  may  be  made  responsible ; 
first,  on  that  of  a  special  authority  given  to  the  agent  to  borrow 
money ;  and  secondly,  on  the  assumed  principle,  that  every  owner 
who  appoints  an  agent  for  the  management  of  his  property  must  be 
taken  to  have  given  him  authority  to  borrow  money  in  cases  of 
absolute  necessity.  There  certainly  was,  in  the  present  case,  some 
evidence  from  which  a  jury  might  have  inferred  that  a  power  to 
borrow  money,  for  the  purposes  of  the  mine,  had  been  expressly 
given  to  the  agent :  but  that  evidence  does  not  appear  to  have  been 
left  to  the  jury,  and  therefore  the  verdict  cannot  be  supported  on 
the  first  ground.  Then  as  to  the  second  ground,  it  appears  that 
the  learned  judge  told  the  jury  that  they  might  infer  an  authority 
in  the  agent,  not  only  to  conduct  the  general  business  of  the  mine, 
but  also,  in  cases  of  necessity,  to  raise  money  for  that  purpose.  I 
am  not  aware  that  any  authority  is  to  be  found  in  our  law  to  support 
this  proposition.  No  such  power  exists,  except  in  the  cases  alluded 
to  in  the  argument,  of  the  master  of  a  ship,  and  of  the  acceptor  of 
a  bill  of  exchange  for  the  honor  of  the  drawer.  The  latter  derives 
its  existence  from  the  law  of  merchants ;  and  in  the  former  case  the 
law,  which, generally  provides  for  ordinary  events,  and  not  for  cases 
which  are  of  rare  occurrence,  considers  how  likely  and  frequent 
are  accidents  at  sea,  when  it  may  be  necessary,  in  order  to  have  the 
vessel  repaired,  or  to  provide  the  means  of  continuing  the  voyage, 
to  pledge  the  credit  of  her  owners ;  and  therefore  it  is  that  the  law 
invests  the  master  with  power  to  raise  money,  and,  by  an  instru- 
ment of  hypothecation,  to  pledge  the  ship  itself  if  necessary.  If 
that  case  be  analogous  to  this,  it  follows  that  the  agent  had  power 
not  only  to  borrow  money,  but,  in  the  event  of  security  being  re- 
quired, to  mortgage  the  mine  itself.  The  authority  of  the  master 
of  a  ship  rests  upon  the  peculiar  character  of  his  office,  and  af- 
fords no  analogy  to  the  case  of  an  ordinary  agent.  I  am  therefore 
of  opinion,  that  the  agent  of  this  mine  had  not  the  authority  con- 
tended for.  Whether  he  had  or  had  not  was  a  question  for  the 
jury;  but,  on  the  general  principles  of  law,  it  seems  to  me  that  the 
ruling  of  the  learned  judge  cannot  be  supported,  and  therefore  that 
the  rule  for  a  new  trial  must  be  made  absolute.  [Alderson,  B., 
concurs  in  an  opinion;  Rolfe,  B.,  concurs.] 


KELLEY  V.  LINDSEY. 

7  Gray    (Mass.)    287.-1856. 

Action  of  contract  on  a  check  payable  to  the  plaintiflf  and  signed 
"Benjamin  Lindscy,  by  George  G.  Coffin."  There  were  also  counts 
for  money  lent  and  money  had  and  received.  The  evidence  tended  to 


agent's  authority.  391 

show  that  Coffin  was  at  the  time  the  check  was  drawn,  the  financial 
agent  and  confidential  clerk  of  defendant. 

Dewey,  J. — *  '''  *  If  Coffin  had  no  authority  to  borrow  money 
on  account  of  the  defendant,  to  expend  in  his  business  and  to  pay  his 
debts,  the  money  advanced  for  that  purpose,  though  so  applied, 
created  no  debt  against  the  defendant.  No  one  can  thus  make  him- 
self a  creditor  of  another  by  the  unsolicited  payment  of  his  debts  ; 
and  it  is  not  enough  to  create  a  liability,  that  the  defendant  had  the 
benefit  of  the  money,  by  reason  of  its  being  expended  in  his  business 
or  in  the  payment  of  his  debts.  There  must  have  been  shown  some 
authority  to  make  such  advance  or  payment  of  money,  proceeding 
from  the  defendant,  in  addition  to  the  mere  fact  of  its  being  applied 
for  his  benefit,  in  order  to  charge  him  with  the  same  in  a  suit  at 
law.  For  this  reason,  the  court  are  of  opinion  that  the  verdict  must 
be  set  aside  and  a  New  trial  had. 


SPOONER  V.  THOMPSON  and  wife. 
48  Vt.   259.— 1876. 

Redfield,  J. — The  plaintiff  claims  to  recover  for  money  loaned 
to  the  defendant,  Lois  Thompson,  while  sole  and  unmarried. 

It  is  not  denied  that  J.  P.  Cutting  was  the  agent  of  said  Lois, 
in  buying  and  selling  goods  at  her  store  in  Richford,  and  that  said 
Cutting,  acting  as  such  agent,  borrowed  money  of  the  plaintiff.  The 
plaintiff  claims  in  argument  that  the  written  articles  of  agreement 
authorize  Cutting  to  borrow  on  the  credit  of  said  Lois.  The  written 
stipulations  provide  that  "she  will  furnish  capital,  or  authorize  him 
(Cutting)  to  employ  or  obtain  credit  on  her  name  and  responsi- 
bility, for  the  purchase  of  goods  to  supply  said  store  and  business 
as  aforesaid,  to  an  amount  not  exceeding  $4,000."  That  "the  entire 
purchases,  including  purchases  for  cash  down,  and  credit,  shall  not 
exceed  four  thousand  dollars."  "That  while  acting  within  the 
limits  herein  before  mentioned,  as  agent,  and  to  the  extent  of  capital 
employed  in  the  purchases  aforesaid,  and  the  legal  and  proper  trans- 
action of  said  business,  and  to  no  other  or  further  extent,  the  acts 
of  her  agent  shall  be  binding  on  her."  The  agency  of  Cutting  was 
express  and  limited,  and,  we  think,  conferred  no  authority  to  borrow 
money  on  her  credit. 

II.  It  was  claimed  that  a  portion  of  the  money  loaned  by  the 
plaintiff  was  paid  by  Cutting  to  Holmes  &  Ross,  for  purchases, 
made  of  said  firm  to  supply  said  store,  and  that  defendants  thus  had 
the  benefit  of  it.  This  was  denied  by  the  defendants.  It  seems  that 
Cutting  settled  the  account  with  Holmes  &  Ross,  and  that  said  Lois 
gave  her  note  for  the  balance  found  due,  and  afterwards  paid  it. 
The  plaintiff  requested  the  court  to  charge  the  jury,  "that  if  Mrs. 
Post   (now  Lois  Thompson)   settled  the  claim  of  Holmes  &  Ross, 


392  MISTAKE    OF    FACT. 

on  which  the  $ioo  borrowed  of  the  plaintiff  was  credited,  to  that 
extent,  at  least,  she  is  bound."  The  court  refused  so  to  charge, 
and  did  charge,  that  if  the  money  went  into  her  business,  and  she 
had  the  benefit  of  it,  "she  would  be  holden  to  pay  it,  provided  the 
jury  find  that  she  afterwards  promised  to  pay  it."  The  defendant's 
evidence  tended  to  show  that  Mrs.  Post  had  no  knowledge  that  any 
money  borrowed  of  the  plaintiff  went  to  pay  Holmes  &  Ross ;  or 
that  any  such  money  appeared  on  the  books  of  said  store ;  and  de- 
nied that  any  such  money  went  for  her  benefit,  or  into  the  business 
of  said  store.  If  Cutting  borrowed  money  of  the  plaintiff  on  the 
credit  of  Mrs.  Post,  without  her  authority,  and  paid  a  part  of  it  to 
Holmes  &  Ross  without  her  knowledge,  it  could  give  the  plaintiff 
no  right  of  action  against  her.  She  could  not  be  made  the  debtor  of 
the  plaintiff  without  her  consent.  If  Cutting  borrowed  money  in 
her  name,  without  authority,  and  she,  having  knowledge  of  the  fact, 
and  that  the  money  went  into  her  business,  and  she  had  the  benefit 
of  it,  she  thereby  adopts  the  transaction,  and  makes  it  her  own. 
The  request  to  charge  the  jury,  by  the  plaintiff,  was,  therefore, 
properly  refused,  and  the  charge  of  the  court,  so  far  as  it  is  stated,  is 
sound  law.  And  the  case  does  not  show  that  the  court  omitted  to 
charge  properly  on  the  subject  of  adopting  the  acts  of  Cutting,  and 
ratifiying  them  by  allowing  them  to  go  to  her  benefit  with  full 
knowledge  of  the  transaction.  The  legal  inference  is,  that  the  court 
gave  correct  instruction  to  the  jury  as  to  every  phase  of  the  case, 
and  it  is  the  duty  of  the  excepting  party  to  show  affirmatively  that 
there  was  error.     *     *     *  Judgment  affirmed.  ^ 

^Accord,  Baldwin  v.  Burrows,  47  N.  Y.  199  (1872)  ;  Bohart  v.  Oberne,  2^ 
Kan.  284  (1887).  In  Fay  v.  Slaughter  et  al.,  194  111.  157  (igoi),  plaintiff  in 
error.  Fay,  gave  to  his  clerk  a  power  of  attorney  "to  be  my  true  and  lawful 
attorney,  for  me  and  in  my  name  to  draw  checks,  bills  of  exchange,  and 
drafts,  and  make  orders  and  overdrafts  upon  the  Northern  Trust  Company 
of  Chicago,  and  in  tmy  name  to  indorse  checks,  drafts,  bills  of  exchange, 
notes,  and  orders  for  deposit  in  said  Northern  Trust  Company,  hereby  con- 
firming all  that  my  said  attorney  shall  do  under  above  authority."  The  clerk 
abstracted  stock  certificates  belonging  to  Fay  and,  forging  Fay's  name  to 
the  assignment,  transferred  them  to  innocent  purchasers,  Slaughter  &  Co., 
the  defendants  in  error.  In  payment,  the  latter  sent  to  the  clerk,  checks 
payable  to  the  order  of  Fay.  The  clerk  endorsed  them  with  Fay's  name, 
deposited  them  with  the  Northern  Trust  Company  and  they  were  credited 
to  Fay.  The  clerk,  in  Fay's  name,  afterwards  drew  checks  upon  the  trust 
company  and  appropriated  the  proceeds.  After  the  facts  were  discovered, 
Slaughter  &  Co.  made  restitution  of  the  stock  to  Fay  and  then  sued  Fay 
in  this  action  for  money  had  and  received.  The  court  said  (p.  170)  :  "We  are 
unable  to  concur  in  the  view  that  the  mere  passing  of  this  money  through  the 
bank  account  of  plaintiff  in  error  without  authority  given  by  him,  and  in  the 
absence  of  evidence  showing  it  went  to  his  benefit  or  was  used  by  or  for  him, 
can  be  held  to  be  such  receiving  of  the  <money  of  defendants  in  error  by  him 
as  in  equity  and  good  conscience  renders  him  liable  for  money  had  and  re- 
ceived for  the  use  of  defendants  in  error.  In  this  record  there  is  no  evidence 
showing,  or  tending  to  show,  that  plaintiff  in  error  got  the  real  benefit  of 
any  of  this  money,  either  by  checking  it  out  for  his  own  use  or  by  its  being 
checked  and  applied  to  his  business." 


AGENTS    AUTHORITY. 


393 


FIRST  BAPTIST  CHURCH  OF  ERIE  v.  CAUGHEY  et  al., 

AdM  I N ISTRATORS. 

85  Pa.  St.  271.— 1878. 

Assumpsit  by  S.  S.  Caughey  and  H.  B.  Fleming,  administrators 
of  Joseph  Neeley,  deceased,  to  recover  the  amount  unpaid,  with  in- 
terest, on  the  following  note  : 

$900.  Erie,  December  24,  1867. 

On  the  1st  day  of  February,  1869,  we  promise  to  pay,  to  the  order 
of  Joseph  Neeley,  nine  hundred  dollars ;  it  being  for  use  of  First 
Baptist  Church,     Value  received.  W.  J.  F.  Liddell, 

Horace  L.  White, 
James  D.  Ross, 
Samuel  Z.  Smith, 
Trustees  of  the  First  Baptist  Church,  Erie,  Pa. 

The  defendants  resisted  the  claim  on  the  ground,  first,  that  under 
the  charter  of  the  church  the  trustees  had  no  authority  to  execute 
such  an  obligation  as  the  one  in  suit,  nor  to  borrow  money ;  and 
secondly,  that  the  money  was  for  the  payment  of  a  note  previously 
given  by  W.  J.  F.  Liddell,  one  of  the  trustees,  to  one  Catharine 
Smith,  for  money  borrowed  from  her  by  him  individually,  and  with 
which  he  paid  a  subscription  he  had  made  towards  the  building- 
fund  of  the  church. 

On  part  of  the  plaintifif  it  was  contended  that,  whether  the  trustees 
had  the  right  to  bind  the  church  by  such  an  obligation,  or  not,  yet, 
if  the  money  obtained  from  Mr.  Neeley  by  the  trustees  was  actually 
used  in  the  construction  of  the  church  edifice,  the  church  receiving 
the  benefit  of  the  same,  there  would  be  an  implied  obligation  to  pay, 
and  plaintiff  should  be  entitled  to  recover  under  the  general  in- 
debitatus assumpsit  counts  in  their  declaration. 

Verdict  and  judgment  for  the  plaintiff. 

Mr.  Justice  Mercer  [after  deciding  that  the  corporation  had 
power  to  contract  a  debt  for  building,  beyond  the  amount  sub- 
scribed.]— During  the  progress  of  the  work,  Mr.  Liddell,  one  of  the 
trustees,  appears  to  have  been  the  financial  agent  and  manager,  in 
behalf  of  the  board  of  trustees.  In  raising  the  funds  necessary, 
he  borrowed  $1200  from  Mrs.  Smith,  and  gave  his  individual  note 
therefor.  Subsequently  the  trustees  borrowed  $900  of  Joseph 
Neeley,  to  pay  so  much  of  the  debt  due  to  Mrs.  Smith,  and  four  of 
them  executed  and  delivered  the  note  for  the  sum  thus  borrowed. 
The  court  doubted  the  power  of  the  plaintiff  in  error  to  give  the 
note,  and  the  consequent  liability  of  the  corporation  thereon  alone ; 
but  substantially  charged  that  there  were  certain  implied  powers 
incident  to  every  corporation,  and  if  they  were  satisfied,  from  the 


394  MISTAKE    OF    FACT. 

evidence,  that  the  money  for  which  the  note  was  given  was  actually 
used  in  rebuilding  the  church,  and  thus  went  to  the  benefit  of  the 
society,  the  law  raised  an  implied  obligation  on  the  part  of  the  church 
to  repay  it.  It  was  contended  on  the  argument  that  there  was  no 
evidence  that  the  money  was  used  in  rebuilding  the  church.  The 
answer  to  this  objection  is  shown  in  several  parts  of  the  record.  The 
note  itself  contains  the  w-ritten  declaration  of  four  of  the  trustees 
jointly^  when  engaged  in  making  the  loan,  that  the  $900  were  "for 
use  of  First  Baptist  Church."  The  settlement  which  Liddell  sub- 
sequently made,  as  appears  by  the  receipt  signed  by  the  president  of 
the  board  of  trustees,  and  one  other  trustee,  declares,  "We  hereby 
assume  all  liabilities  of  said  church  for  which  said  W.  J.  F.  Liddell 
as  trustee  has  become  responsible,  including  note  given  to  Mrs. 
Catharine  Smith,  signed  by  himself  individually,  for  the  use  of  said 
church,  according  to  settlement  made  this  day."  On  the  trial  of  the 
cause,  James  Dunlap,  president  of  the  board  of  trustees,  was  called, 
by  defendants  in  error,  as  a  witness,  and  in  his  testimony  in  chief 
said,  "in  repairing  church  had  to  borrow  money ;  were  advised  by 
counsel  that  church  could  not  borrow  it ;  must  be  individual ;  the 
money  borrowed  from  Neeley  was  paid  to  Mrs.  Catharine  Smith, 
to  discharge  a  debt  to  her  for  money  borrowed  by  Mr.  Liddell  for 
the  church."  It  is  true,  on  cross-examination,  his  evidence  goes 
to  impair  the  validity  of  the  receipt  to  which  his  name  was  sub- 
scribed, and  he  further  said  "none  of  the  Neeley  money  was  received 
by  the  church."  I  think  the  fair  interpretation  of  his  testimony  is 
that  the  money  was  not  actually  paid  into  the  hands  of  the  trustees, 
but  was  paid  directly  by  Neeley  to  Mrs.  Smith.  It  was,  however, 
a  question  for  the  jury  to  determine.  It  is  further  shown  by  the 
evidence  that  the  plaintiff  in  error  made  a  payment  of  $300  on  the 
note  given  to  Neeley ;  the  indorsement  thereof  being  in  the  hand- 
writing of  the  treasurer,  now  deceased,  of  the  corporation. 

This  chain  of  evidence,  both  written  and  verbal,  tending  to  show 
how  the  business  was  conducted  and  settled,  ratified  by  a  partial  pay- 
ment, was  certainly  sufficient  to  submit  to  the  jury  to  find  that  the 
money  was  used  in  rebuilding  the  church. 

Judgment  affirmed. 


BILLINGS  V.  INHABITANTS  OF  MONMOUTH. 

72   Mf.    174.— 1881. 

On  exceptions  and  motion  for  a  new  trial.  Assumpsit  on  three 
promissory  notes  signed  "William  G.  Brown,  Treasurer ;"  also 
for  money  had  and  received.  Plea  was  general  issue,  and  statute 
of  limitations  was  set  up  under  a  brief  statement.  The  verdict  was 
for  $3,004.81.  The  exceptions  relate  to  the  admission  in  evidence 
of  the  notes  declared  upon,  of  certain  other  notes,  and  of  the  records, 


AGIiXX's    AUTHORITY.  395 

accounts,  and  settlements  with  the  treausrer  of  the  defendant  town. 
Exceptions  were  also  taken  to  the  part  of  the  charge  to  the  jury 
given  below : 

"Now  a  question  is  raised  here  in  the  very  beginning  whether 
these  notes  are  the  notes  of  the  town,  or  the  notes  of  the  treasurer. 
I  do  not  deem  it  necessary  to  state  in  regard  to  that  now.  I  do  not 
care  to  state  it  for  the  reason  that  there  are  several  actions  pending, 
in  which  that  very  question  will  be  raised  and  wall  be  finally  settled 
by  the  law  court.  And  it  is  sufficient  for  me  to  say  to  you,  that  those 
notes  were  not  authorized  by  any  vote  of  the  town.  .  .  That  lays  the 
notes  out  of  the  case ;" — and  to  other  parts  of  the  charge  covering 
several  pages. 

Barrows,  J. —  *  *  *  *  The  notes  were  "laid  out  of  the 
case,"  and  the  plaintiff's  right  to  recover  was  made  to  depend  upon 
his  establishing  what  was  necessary  to  entitle  him  to  a  verdict  upon 
the  count  for  money  had  and  received.  The  testimony  tending  to 
show  authority  or  ratification  was  weighed  and  found  wanting.  After 
this,  there  was  no  occasion  to  pass  upon  the  construction  of  the  notes, 
any  more  than  there  w^as  in  Parsons  v.  Monmouth,  70  Me.  264.  That 
any  negotiable  paper,  made  by  the  officers  of  a  town  in  the  transaction 
of  its  ordinary  business,  not  proceeding  under  special  authority  con- 
ferred by  some  statute,  will  be  subject,  even  in  the  hands  of  a  bona 
fide  indorsee,  to  all  equitable  defenses  that  might  be  made  against 
the  original  promisee,  is  well  settled  in  this  State,  as  appears  in  the 
case  last  named,  and  the  cases  there  cited.  And  the  plain  doctrine 
of  Bessey  v.  Unity,  65  Me.  342,  and  Parsons  v.  Monmouth,  is  that 
the  holder  of  such  paper  who  has  lent  money  upon  the  representation 
of  town  officers  that  it  was  wanted  for  municipal  use,  must  go 
farther  and  show  the  appropriation  of  the  money  lent  to  discharge 
legitimate  expenses  of  the  town,  unless  he  can  show  that  such  officers 
were  specially  authorized,  by  vote  of  the  town  at  a  legal  meeting, 
to  efifect  the  loan.  The  case  at  bar  seems  to  have  been  tried  in 
careful  conformity  with  these  rules.  The  fallacy  of  the  greater  part 
of  the  defendant's  argument  upon  the  exceptions  consists  in  ignoring 
the  fact  that  "the  notes  were  laid  out  of  the  case." 

It  is  strongly  implied  in  the  two  cases  last  above  cited  that  money 
thus  advanced  and  shown  to  have  been  actually  appropriated  to  the 
discharge  of  legal  liabilities  of  the  town,  would  be  held  recoverable 
in  an  action  for  money  had  and  received  against  the  town.  We  see 
no  good  reason  to  excuse  the  town  from  refunding  it  when  it  has 
been  actually  thus  appropriated.  The  plaintiff  by  such  proof  brings 
his  case  fully  within  the  principles  that  govern  the  action  for  money 
had  and  received.  He  shows  his  money  received  and  appropriated 
by  the  agents  of  the  town  to  the  legitimate  use  of  the  town,  and  in 
such  case  the  want  of  an  express  promise  to  repay  it  will  not  defeat 
the  action.  The  law  will  imply  a  promise,  sometimes,  even  against 
the  denial  and  protestation  of  the  defendant.  Howe  v.  Clancey, 
53  Me.  130.  It  is  the  payment  of  the  lawful  debts  of  the  town  by 
its  own  agents   with   the  plaintiff's  money  which   constitutes   the 


396  MISTAKE    OF    FACT. 

cause  of  action.  To  allow  a  recovery  by  the  plaintiff  of  whatever 
sum  he  can  show  has  thus  inured  to  the  benefit  of  the  town,  is  a 
more  compendious  mode  of  settling  the  controversy  than  the  English 
method  of  subrogating  the  lender  of  the  money  to  the  rights  of  the 
perhaps  numerous  corporation  creditors,  who  have  been  paid  with 
the  funds  procured  without  authority,  a  mode  of  doing  justice 
which  manifestly  tends  to  a  multiplicity  of  suits,  when,  for  aught 
we  see,  the  proper  result  may  be  reached,  at  all  events  with  the 
assistance  of  an  auditor,  in  a  single  action.     *     *     * 

The  vital  question  of  fact  whether  the  plaintiff's  money  had  ac- 
tually been  applied  by  the  town  officers  to  the  extinguishment  of 
legal  claims  against  the  town  was  settled  by  the  jury  against  the 
defendants.  The  jury  found  that  it  was  so  applied.  The  testimony 
produced  by  the  plaintiff,  if  believed,  justified  the  finding,  and  there 
is  nothing  in  its  character  or  in  that  of  the  accounts  produced  which 
decisively  stamps  it  as  untrue.  There  is  an  apparent  error  of  a 
few  dollars  in  the  reckoning  of  interest.  When  the  plaintiff  has 
cured  this  by  a  remittitur,  the  entry  will  be 

Motion  and  exceptions  overruled.^ 


WHITE  RIVER  SCHOOL  TOWNSHIP  v.  DORRELL. 

26  Ind.  App.  538. — 1901. 

Action  by  William  Dorrell,  Sr.,  against  the  White  River  school 
township.  From  a  judgment  in  favor  of  the  plaintiff,  the  defendant 
appeals.  Affirmed  on  condition  of  the  remission  of  a  part  of  the 
judgment ;  otherwise,  reversed. 

^But  see  Belfast  Nat.  Bank  v.  Stockton,  ^2.  Me.  522,  525  (1881)  ;  and 
Lincoln  v.  Stockton,  75  Me.  141  (1883),  where  the  court  says,  p.  144:  "In  re- 
cent cases  in  this  state  it  has  been  held,  that  when  selectmen  have  acted 
without  special  authority  in  procuring  loans  of  money  for  municipal  purposes, 
if  the  lender  would  recover  in  an  action  of  assumpsit  against  the  town  the 
amount  of  the  loans,  he  must  prove  not  only  that  the  money  was  received 
by  the  selectmen  in  their  official  capacity,  but  also  that  it  was  applied  by 
them  to  the  use  for  which  it  was  obtained,  to  meet  and  discharge  existing 
municipal  liabilities,  Billings  v.  Monmouth,  72  Me.  174;  that  towns  themselves 
by  the  statutes  organizing  them  are  strictly  limited  in  the  exercise  of  the  pow- 
ers of  borrowing  and  appropriating  money.  Hooper  v.  Emery,  14  Me.  375; 
Parsons  v.  Monmouth,  70  Me.  264;  Minot  v.  West  Roxbury,  112  Mass.  i; 
that  selectmen  do  not  possess  by  virtue  of  their  office  a  general  authority  to 
hire  money  upon  the  credit  of  the  town,  Bessey  v.  Unity,  65  Me.  347;  that  some 
action  of  the  town,  the  body  corporate,  within  the  scope  of  its  corporate 
powers,  is  required  to  confer  prior  authority  to  borrow  money  in  its  name; 
and  if  a  liability  is  alleged  on  the  ground  that  the  plaintiff's  loan  was  one 
the  municipality  had  a  legal  right  to  procure,  and  that,  though  its  officers  did 
not  act  with  authority  at  the  time,  it  has  subsequently  availed  itself  of  the 
money  loaned  by  accepting  its  application  to  the  payment  of  municipal  debts, 
it  is  for  the  plaintiff  to  prove  the  facts,  which  support  the  allegation." 

.See,  also,  the  cases  on  ultra  vires  contracts  of  municipal  corporations,  re- 
ported herein  ante,  pp.  79,  et  scq. 


agent's  authority.  397 

Robinson,  J. — On  August  4,  1896,  appellant's  trustee  was  en- 
gaged in  erecting  a  suitable  and  necessary  school  house  in  a  certain 
school  district  having  about  40  children  of  school  age,  and  having 
no  suitable  school  house.  The  contract  price  of  the  building  was 
$1,300.  The  township  had  no  funds  belonging  to  the  special  school 
fund  with  which  to  pay  for  the  completion  of  the  building,  and  it 
required  $500  to  complete  the  building.  The  trustee  represented 
to  appellee  that  it  was  necessary  for  him  to  have  such  sum,  and  at 
the  trustee's  request,  and  for  the  purpose  of  completing  the  build- 
ing, appellee  turned  over  to  the  trustee  that  sum,  which  was  used  in 
paying  for  the  erection  of  the  building  under  the  contract,  and  was 
paid  by  the  trustee  to  the  contractor  for  the  purpose  of  paying  for 
the  completion  of  the  building,  and  that  the  township  since  that  time 
and  now  retains  the  benefit  derived  from  the  use  of  such  sum  in 
the  use  of  such  school  house  for  school  purposes ;  that  such  sum  was 
not  in  excess  of  the  fund  on  hand  to  which  the  debt  is  chargeable 
and  the  fund  derived  from  the  tax  assessed  for  the  year  1896.  The 
trial  court  held  that  appellee  ought  to  be  subrogated  to  the  rights 
of  the  contractor  to  the  extent  of  $500,  with  interest. 

The  right  of  subrogation  is  not  founded  upon  contract,  express 
or  implied.  It  is  based  upon  the  principles  of  equity  and  justice,  and 
includes  every  instance  where  one  party,  not  a  mere  volunteer,  pays 
for  another  a  debt  for  which  the  latter  was  primarily  liable,  and 
which  in  good  conscience  and  equity  he  should  have  paid.  See 
Spaulding  v.  Harvey,  129  Ind.  106,  28  N.  E.  323,  13  L.  R.  A.  619, 
28  Am.  St.  Rep.  176;  Hufifmond  v.  Bence,  128  Ind.  131,  27  N.  E. 
347 ;  Sidener  v.  Pavey,  yy  Ind.  241 ;  Gerber  v.  Sharp,  'jt.  Ind.  553 ; 
Rooker  v.  Benson,  83  Ind.  250.  The  findings  show  that  the  money 
received  by  the  trustee  was  paid  out  by  him  for  property  actually 
received  by  the  school  corporation  and  retained  by  it.  The  contract 
for  building  the  house  was  such  a  contract  as  the  trustee  was  author- 
ized to  make.  The  money  was  advanced  to  the  trustee  for  the  pur- 
pose of  completing  a  necessary  and  suitable  school  house.  The 
trustee  had  not  the  means  in  hand  to  complete  the  building,  and  the 
money  advanced  was,  in  fact,  applied  to  that  purpose.  To  permit 
a  recovery  in  such  a  case  is  in  no  way  recognizing  a  general  power 
in  the  trustee  to  borrow  money.  There  is  no  suggestion  whatever 
of  any  fraud  in  the  building  of  the  house.  Appellant  has  received 
and  retains  the  benefit  of  the  money  so  advanced,  and  the  simplest 
principles  of  equity  and  justice  require  that  it  should  repay  it.  See 
Bicknell  v.  School  Tp.,  73  Ind.  501  ;  Wallis  v.  School  Tp.,  75  Ind. 
368 ;  First  Nat.  Bank  of  Crawfordsville  v.  Union  School  Tp.,  75 
Ind.  361  ;  Pine  Civil  Tp.  v.  Huber  Mfg.  Co.,  83  Ind.  121  ;  School 
Tp.  V.  Dodson,  98  Ind.  497. 

The  court  found  that  appellee  is  entitled  to  6  per  cent,  interest 
from  August  4,  1896,  to  December  20,  1899.  The  court  found  that 
payment  was  demanded  before  suit,  but  does  not  find  the  date  of 
the  demand.  We  have  held  appellee  liable  for  the  amount  on  the 
ground  that  the  money  was  advanced  for  the  purpose  of  completing 


3l98  mistake  of  fact. 

the  building,  and  that  it  was  in  fact  applied  to  that  purpose.  Appellee 
would  be  entitled  to  interest  from  the  time  the  money  advanced  was 
actually  used.  There  is  a  finding"  that  the  money  was  paid  to  the 
contractor.  But  there  is  no  finding  when  it  was  so  paid.  The  town- 
ship did  not  necessarily  have  the  use  of  the  money  from  the  day 
it  was  turned  over  to  the  trustee.  It  did  have  the  use  of  the  money 
from  the  time  it  was  paid  to  the  contractor  for  the  completion  of  the 
building.  But  this  date  is  not  found.  From  the  findings,  interest 
should  have  been  allowed  only  from  the  date  of  the  filing  of  the 
suit.  The  amount  of  interest  from  August  4,  1896,  to  the  date  of 
filing  the  complaint,  February  7,  1899,  $75.25,  is  excessive.  If 
appellee  will  within  30  days  from  this  date  remit  $75.25  as  of  the 
date  of  the  judgment,  the  cause  will  be  affirmed  ;  otherwise,  reversed. 


REID  V.  RIGBY  &  CO. 
[1894]  2  Q.  B.  40. 

Appeal  by  the  plaintifif  from  the  decision  of  the  judge  of  the 
Westminister  County  Court,  in  favor  of  the  defendants,  in  an  action 
brought  by  the  plaintiiT,  to  recover  £20  on  a  cheque,  and,  secondly, 
to  recover  the  same  sum  as  money  received  by  the  defendants  to 
the  use  of  the  plaintiff.  The  cheque  in  question  was  signed  "Rigby 
&  Co.  per  procuration  of  J.  Allport,  manager,"  and  was  drawn  on 
May  21,  1892.  The  claim  was  made  after  Allport's  death.  It  was 
found  by  the  county  court  judge  that  Allport  had  been  the  manager 
of  the  defendant's  firm,  and  had  authority  to  draw  on  their  banking 
account  for  the  purposes  of  their  business,  but  had  no  authority  to 
overdraw  their  account,  which  he  had  overdrawn,  or  to  borrow 
money  on  their  behalf.  It  was  also  found  that  Allport  had  borrowed 
this  sum  of  £20  for  his  own  purposes,  in  order  to  replace  money  of 
the  defendant's  which  he  had  abstracted.  The  evidence  showed  that 
Allport  had  obtained  the  cheque  from  the  plaintiff  by  a  statement 
that  he  was  short  of  money,  and  wanted  the  money  to  pay  the  wages 
of  the  defendant's  workmen,  and  it  was  shown  that  he  had  paid  the 
money  into  the  defendant's  account  at  their  bank,  and  had  used  it 
to  pay  the  wages  of  their  workmen. 

Charles,  J. — *  *  *  1  jj^  j^iy  opinion,  the  true  inference  is  that 
the  money  which  was  borrowed  for  wages  was  paid  into  the  defend- 
ant's banking  account,  and  was  applied  in  payment  of  wages.  The 
question  is  whether  the  plaintifif  can  recover  that  money  from  the 

'  After  holflinp  that  no  action  could  l)c  maintained  upon  the  checquc.  by  sec. 
25,  of  the  Hills  of  lixclian^e  Act,  1S82.  because  by  that  section  a  signature  by 
procuration  is  notice  that  the  agent  has  only  limited  authority  to  sign,  and  the 
principal  is  bound  by  such  signature  only  to  the  extent  of  the  actual  authority 
of  the  agent. 


AGENT  S    AUTHORITY.  399 

defendants.  It  is  contended  on  behalf  of  the  defendants  that  he 
cannot,  on  the  findings  of  the  county  court  judge  to  which  I  have 
referred,  and  also  on  a  further  finding,  that  Allport  borrowed  the 
money  for  his  own  purposes,  in  order  to  replace  money  belonging 
to  the  defendants  which  he  had  abstracted.  I  was  at  first  somewhat 
embarrassed  by  that  finding ;  but  on  consideration  I  have  come  to  the 
conclusion  that  it  does  not  affect  the  legal  position  of  the  parties.  All- 
port  has  paid  the  money  in  to  the  defendants'  banking  account ;  and 
either  it  is  there  now  or  it  has  been  paid  in  wages  to  the  defendants' 
workmen.  The  latter,  I  think,  is  the  true  inference ;  but  in  either 
case  I  think  the  result  is  the  same.  Suppose  that  Allport  had  paid 
the  money  direct  to  the  workmen,  and  had  asked  the  defendants 
to  repay  him,  could  the  defendants  have  refused  ?  It  seems  to  me, 
that  if  the  wages  had  been  so  paid,  then,  when  the  defendants  had 
discovered  the  fact  of  payment,  they  must  have  either  repudiated 
such  payment  or  adopted  it.  By  accepting  the  benefit  of  the  pay- 
ment they  would  adopt  it.  It  comes  to  this,  that  either  the  workmen 
have  been  paid  or  they  have  not.  If  they  have  been  paid,  the  money 
so  paid  was  in  contemplation  of  law  money  received  by  the  defend- 
ants to  the  use  of  the  plaintiff ;  for  either  they  have  ratified  the  pay- 
ment, or,  if  the  money  is  still  in  their  bank,  it  is  the  money  of  the 
plaintiff.  I  am  of  opinion  that  the  decision  in  Marsh  v.  Keating,  i 
Bing.  N.  C.  198,  supports  this  view.  In  that  case  the  money  sought 
to  be  recovered  was  the  proceeds  of  the  fraud  of  Fauntleroy.  The 
defendants,  who  had  been  Fauntleroy's  partners,  knew  nothing 
of  the  fraud ;  but  the  judges  who  advised  the  House  of  Lords  ex- 
pressed a  unanimous  opinion  that  it  must  be  treated  as  money  re- 
ceived by  the  defendants  to  the  use  of  the  plaintiff,  because  it  came 
into  the  possession  of  the  defendants.  The  same  view  applies  to 
the  present  case.  Further  than  this,  the  defendants  have  since  had 
an  opportunity  of  finding  out  that  the  money  had  been  paid  in  to  their 
account.  For  these  reasons  I  am  of  opinion  that  this  sum  of  £20 
was  money  received  by  the  defendants  to  the  use  of  the  plaintiff. 
I  will  not  say  what  the  result  might  have  been  if  the  money  had  been 
paid  in  to  the  bank  under  some  binding  contract  between  Allport 
and  the  defendants.  However  it  was  paid  in,  it  has  found  its  way 
into  the  possession  of  the  defendants,  and  therefore  it  was  money 
received  to  the  use  of  the  plaintiff,  which  he  is  entitled  to  recover, 
and  the  appeal  must  be  allowed.  [Concurring  opinion  by  Collins, 
J-]   ' 

^In  Deery  v.  Hamilton,  41  la.  16  (1875),  a"  executor  borrowed  money  with- 
out authority.  The  court  said  (p.  18)  :  "The  estate  has  received  the  benefit 
of  the  money  which  was  advanced  by  the  defendant.  It  ought  in  good 
conscience  to  repay  it  with  legal  interest.  This  is  not  required  because  of 
the  contract  under  which  the  money  was  borrowed,  which  is  invalid,  but  on 
the  ground  that  the  estate  has  had  the  benefit  of  the  money  received  from 
defendant." 


400  MISTAKE   OF   FACT. 

CARPENTER  v.  UNITED  STATES. 
17  Wall,  489. — 1873. 

Appeal  from  the  Court  of  Claims ;  the  case  as  found  by  that  court 
having  been  thus :  In  July,  1863,  Major  Hunt,  of  the  corps  of 
engineers,  entered  into  negotiations  with  one  Carpenter,  owner  of 
an  island  in  Narragansett  Bay,  for  the  purchase  of  it  by  the  United 
States  for  military  uses ;  and  a  parol  contract  for  the  purchase  and 
sale  was  then  concluded ;  the  terms  being  approved  by  the  Secretary 
of  War.  The  price  as  stipulated,  was  $21,000.  In  August  following, 
the  officers  of  the  government,  with  the  consent  of  Carpenter, 
entered  into  possession  of  the  island  and  began  to  prepare  for  forti- 
fying it.  The  possession  then  taken  they  have  ever  since  retained. 
Upon  examination,  however,  it  was  found  and  so  reported  by  the 
Attorney-General,  that  under  an  act  of  May  ist,  1820,  3  Stat,  at 
Large  568,  an  executive  department  had  by  law  no  authority  to  pur- 
chase land  on  account  of  the  government.  Consequently  the  verbal 
arrangement  with  Carpenter  remained  unconsummated,  until  1866. 
On  the  1 2th  of  June,  of  that  year.  Congress  made  an  appropriation 
for  the  purchase  of  sites  then  occupied,  and  proposed  to  be  occupied 
for  sea-coast  defense,  and  on  the  7th  of  August  next  following,  the 
purchase-money  of  the  island  ($21,000)  was  paid  to  Carpenter,  and 
accepted  by  him  without  any  claim  for  interest  or  rents,  so  far  as 
it  appeared,  and  he  delivered  a  deed  for  the  property  to  the  United 
States.  In  this  state  of  things  Carpenter  now,  December  7th,  1867, 
filed  a  petition  in  the  Court  of  Claims,  claiming  compensation  from 
the  United  States  for  the  use  and  occupation  of  the  island  from  the 
time  the  United  States  officers,  with  his  consent,  took  possession, 
after  the  verbal  arrangement  to  purchase,  until  the  deed  was  made 
and  the  purchase-money  was  paid,  that  is,  from  August,  1863,  to 
August,  1866.  The  question  was  whether,  upon  the  case  stated,  an 
action  for  use  and  occupation  could  be  sustained. 

The  Court  of  Claims,  as  appeared  by  its  opinion,  6  Court  of 
Claims  162,  considered  that  the  law  (i.  e.,  the  statute  of  11  George 
II,  chapter  19,  sec.  14)  which  gives  the  action  for  use  and  occupation 
always  required  that  some  contract  of  demise  should  subsist ;  in 
other  words,  that  the  relation  of  landlord  and  tenant  must  be  estab- 
lished ;  fit  having  been  held  in  Brett  v.  Read  (i  W.  Jones  329)  that 
where  there  had  been  an  actual  lease,  action  for  use  and  occupation 
would  not  lie,  the  statute  of  11  George  II,  chapter  19,  sec.  14,  en- 
acted that — 

"It  should  be  lawful  for  a  landlord,  where  the  agreement  was  not 
by  deed,  to  recover  a  reasonable  satisfaction  for  lands,  tenements, 
or  hereditaments  held  or  occupied  by  the  defendant,  in  an  action  on 
the  case  for  the  use  and  occupation  of  what  was  so  held  or  enjoyed ; 
and  if,  on  the  trial  of  such  action,  any  parol  demise,  or  any  agree- 
ment   (not  being  by  deed)   whereon  a  certain  rent  was  reserved, 


AGENT  S    AUTHORITY.  4OI 

should  appear,  the  plaintiff  in  such  action  should  not  therefore  be 
nonsuited,  but  might  make  use  thereof  as  an  evidence  of  the  quantum 
of  damages  to  be  recovered."  Rep.]  ;  that  there  was  no  such  relation- 
ship here.  That  independently  of  this  the  claim  rested  on  an  im- 
plied contract,  but  that  where  there  was  an  express  contract  to  buy, 
a  contract  to  pay  rent  could  not  arise  by  mere  inference.  Relying  on 
these  views,  and  citing  the  English  case  of  Kirtland  v.  Pounsett, 
2  Taunton  145,  it  accordingly  decreed  a  dismissal  of  the  petition. 
From  that  decree  the  claimant  appealed. 

Mr.  Justice  Stroxg. — Though  it  has  sometimes  been  said  that 
an  action  of  debt,  or  assumpsit,  for  the  use  and  occupation  of  land, 
can  be  maintained  only  when  the  relation  of  landlord  and  tenant 
has  existed  between  the  plaintiff  and  defendant,  this  is  not  strictly 
accurate,  if  it  be  meant  that  a  demise  must  be  in  fact  proved.  It  is 
true  that  the  statute  of  11  George  II,  chapter  19,  sec.  14,  enacted 
that  the  action  might  be  sustained  when  a  demise  has  been  proved, 
but  the  action  existed  before  the  statute  was  enacted,  and  the  only 
effect  of  the  statute  was  to  enlarge  its  sphere.  Privity  of  contract 
is  doubtless  essential  in  all  cases.  But  when  the  defendant  has  enter- 
ed and  occupied  by  permission  of  the  plaintiff,  without  any  express 
contract,  the  law  implies  a  promise  on  his  part  to  make  compensation 
or  pay  a  reasonable  rent  for  his  occupation.  In  such  a  case,  the  con- 
sent of  the  owner  to  the  defendant's  entry,  followed  by  such  entry 
and  by  subsequent  occupation,  may  be  considered  equivalent  to  a 
demise,  or  at  least  prima  facie  evidence  of  a  demise.  This  is  be- 
cause a  demise  with  a  corresponding  agreement  to  pay  rent,  or  make 
compensation  for  the  use  of  the  property,  is  consistent  with  an  un- 
explained entry  by  the  owner's  consent,  and  because  it  is  a  reasonable 
presumption  that  the  occupation  thus  taken  was  intended  to  be  paid 
for.  No  reason,  however,  for  such  an  implication  exists,  when  an 
express  contract  or  an  arrangement  between  the  parties  shows  that  it 
was  not  intended  by  them  to  constitute  the  relation  of  landlord  and 
tenant,  but  that  the  occupation  was  taken  and  held  for  another  pur- 
pose. And  this  is  shown  when  the  entry  has  been  made  in  pur- 
suance of  an  agreement  to  purchase,  whether  that  agreement  was  in 
writing  or  in  parol.  Such  an  agreement  sufficiently  explains  the 
allowed  entry,  without  the  necessity  of  resorting  to  any  implication 
of  a  contract  other  than  that  actually  made.  Accordingly  it  was 
ruled  in  Kirtland  v.  Pounsett,  2  Taunton,  145,  that  an  action  for 
the  use  and  occupation  cannot  be  maintained  against  one  who  took 
possession  under  a  contract  of  sale,  which  failed  afterwards  to  be 
consummated,  in  consequence  of  the  vendor's  inability  to  make  title. 
It  is  true  it  appeared  in  that  case  the  purchase-money  had  been  paid, 
and  by  the  use  of  it  the  vendor  might  have  been  regarded  as  com- 
pensated for  the  defendant's  occupation,  yet  C.  J.  Mansfield  said : 
"A  contract  cannot  arise  by  implication  of  law  under  circumstances 
the  occurrence  of  which  neither  of  the  parties  ever  had  in  contempla- 
tion." The  same  principle  was  asserted  in  Rumball  v.  Wright,  i 
Woodruff's  Cases — 26 


402  MISTAKE   OF    FACT. 

Carrington  &  Payne,  589.  And  in  the  later  case  of  Winterbottom 
V.  Ingham,  7  Adolphus  &  Elhs,  New  Series,  611,  the  same  doctrine 
was  declared,  though  the  purchase-money  had  not  been  paid,  and  the 
reason  given  was,  that  when  the  defendant  was  let  into  possession, 
both  parties  understood  that  he  made  no  promise  to  pay  rent.  The 
holding  was  in  the  expectation  that  title  would  be  made  and  the 
purchase  completed.  There  are  other  decisions  to  the  same  effect. 
It  is  true  that  in  Howard  v.  Shaw,  8  Meeson  &  Welsby  118,  it  was 
held  that  after  a  contract  of  sale  had  been  rescinded,  an  action  for 
use  and  occupation  might  be  maintained  against  a  defendant  who 
had  remained  in  possession  with  the  consent  of  the  owner,  but  with- 
out any  title  or  contract  for  the  purchase  of  the  land,  and  that  a  re- 
covery might  be  had  for  the  possession  retained  after  the  contract 
of  purchase  was  terminated.  But  he  was  not  held  liable  for  rent 
during  the  time  the  contract  subsisted,  and  he  could  not  have  been 
for  the  obvious  reason  that  the  contract  was  inconsistent  with  any 
understanding  that  rent  was  to  be  paid.  And  no  case  can  be  found, 
it  is  believed,  in  which  one  who  entered  in  virtue  of  an  agreement 
or  understanding  that  he  was  to  be  a  purchaser,  has  been  held  liable 
in  an  action  for  the  use  and  occupation  of  the  land,  if  the  purchase 
was  actually  concluded. 

It  is  contended,  however,  on  behalf  of  the  present  plaintiff,  that 
the  contract  of  purchase  under  which,  or  in  the  expectation  of  the 
completion  of  which,  the  United  States  entered,  and  under  which 
they  continued  to  hold  until  the  deed  was  made  and  the  purchase- 
money  was  paid,  was  invalid,  that  until  the  act  of  Congress  of  1866 
was  passed,  no  executive  department  had  authority  to  purchase  the 
island,  and  that,  therefore,  there  was  no  legal  contract  for  the  pur- 
chase in  existence  until  the  deed  was  made  and  the  price  paid.  But 
if  this  be  conceded,  it  can  make  no  difference.  Let  it  be  that  neither 
party  could  have  enforced  the  parol  arrangement,  it  is  still  true  that 
it  was  utterly  inconsistent  with  any  understanding  that  the  parties 
contemplated  the  one  was  to  pay  and  the  other  was  to  receive  rent  for 
the  occupation  of  the  property.  The  understanding  of  the  parties 
is  the  material  thing.  Unless  it  was  in  their  contemplation  that 
compensation,  other  than  the  price  stipulated  to  be  paid  for  the 
transfer  of  the  title,  should  be  made,  as  C.  J.  Mansfield  said,  in 
Kirtland  v.  Pounsett,  a  contract  to  pay  rent  cannot  arise  by  impli- 
cation of  law. 

The  plain  common  sense  of  the  case  is,  that  if  the  plaintiff  was 
entitled  to  anything  beyond  what  he  has  received,  it  was  to  interest 
on  the  purchase-money  from  the  time  the  possession  was  taken  until 
the  price  of  the  sale  was  paid.  That  he  should  have  demanded  be- 
fore he  delivered  his  deed.  Not  having  done  so,  but  having  accepted 
the  principal  anrl  consummated  the  sale,  he  cannot  now  assert  that 
the  relation  in  which  his  vendee  stood  to  him  was  that  of  a  tenant 
to  a  landlord,  and  recover  interest  in  the  shape  of  damages  for  the 
breach  of  an  implied  promise  to  pay  rent  for  the  use  and  occupation 


MISTAKE   OF    LAW.  403 

of  the  island.    There  is  no  room  in  the  facts  found  by  the  Court  of 
Claims  for  the  implication  of  any  such  promise. 

Judgment  affirmed.^ 


b.     Mistake  of  Law. 
i.     In  General. 

CLARKE  V.  BUTCHER. 
9  Cow.    (N.  Y.)   674.— 1824. 

On  error  from  the  Court  of  Common  Pleas  of  Otsego  county. 
Dutcher  sued  Clarke  on  the  8th  of  January,  1821,  by  summons,  in  a 
justice's  court  of  that  county ;  and  declared  that  he,  Dutcher,  then 
was,  and  had  been  from  the  spring  of  1785,  in  the  possession  and  oc- 
cupation of  lot  No.  36  containing  100  acres,  in  the  Cherry  Valley  pat- 
ent, as  a  tenant  to  Clarke,  at  an  annual  rent  of  6d.  sterling  an  acre,  or 
£2  10  sterling  for  the  whole  lot ;  that  the  defendant  Clarke,  from  that 
Hme  to  the  present  had  demanded,  and  the  plaintiff  Dutcher  had  been 
obliged  to  pay,  and  had  paid  £4.  14  York  currency  per  year  for  the 
annual  rent,  to  the  defendant,  being  about  64  cents  more  than  the 
actual  rent  reserved  on  the  lot ;  and  that  when  the  plaintiff  took  pos- 
session, there  was  rent  due  on  the  lot  from  1741,  which  the  plaintiff 
had  been  obliged  to  pay,  and  had  paid  at  the  same  rate ;  and  which 
was  more  than  the  annual  rent  reserved  on  the  lot.  The  second 
count  stated  the  same  facts,  and  added  that  the  plaintiff  paid  the 
money  in  ignorance  of  his  own  rights.  The  third  count  was  for  the 
interest  paid  by  the  plaintiff  at  different  times  on  the  rent.  The 
fourth  count  was  for  compound  interest  paid  on  the  same  rent.  The 
fifth  and  last  count  was  for  money  lent,  money  paid,  etc.,  and  money 
had  and  received  generally.  Pleas,  the  general  issue,  also  the  statute 
of  limitations  to  all  the  plaintiff's  demand  except  for  the  last  six 
years,  also  the  statute  of  limitations  to  the  whole  demand,  also  a  set- 
off for  rent  due  on  the  same  lot.  The  jury  found  a  verdict  for  the 
plaintiff  with  $50  damages,  upon  which  the  C.  P.  rendered  judg- 
ment with  costs ;  and  the  defendant  brought  error  to  this  court. 

Curia  per  Sutherland^  J. — *  *  *  But  although  this  view  of 
the  case,-  if  I  am  correct  in  it,  is  conclusive,  it  may  be  well  briefly 
to  consider  that  which,  upon  the  argument,  was  treated  as  the  main 
point  in  the  cause.  It  is  embraced  in  the  exception,  that  the  payments 
made  by  the  defendant  in  error  were  made  voluntarily,  with  a  full 
knowledge  of  all  the  facts  in  the  case ;  and  admitting  that  they  ex- 
ceeded the  amount  legally  due,  and  that  the  statute  of  limitations 

*  For  a  further  discussion  of  assumpsit  for  use  and  occupation  of  land,  see 
cases  on  waiver  of  trespass  to  land,  post,  p.  625,  ct  seq. 
^As  to  the  statute  of  limitations. 


404  MISTAKE    OF    LAW. 

was  out  of  the  question,  the  excess  could  not  be  recovered  back,  the 
mistake  being  in  law  and  not  in  fact. 

Although  there  are  a  few  dicta  of  eminent  judges  to  the  contrary, 
I  consider  the  current  and  weight  of  authorities  as  clearly  establish- 
ing the  position,  that  where  money  is  paid  with  a  full  knowledge  of 
all  the  facts  and  circumstances  upon  which  it  is  demanded,  or  with 
the  means  of  such  knowledge,  it  cannot  be  recovered  back  upon  the 
ground  that  the  party  supposed  he  was  bound  in  law  to  pay  it,  when 
in  truth  he  was  not.  He  shall  not  be  permitted  to  allege  his  igno- 
rance of  law  ;  and  it  shall  be  considered  a  voluntary  payment. 

This  position  was  broadly  stated  by  Buller_,  J.,  in  Lowry  v.  Bour- 
dieu,  Doug.  470,  without  any  question,  or  the  expression  of  any 
doubt  or  disapprobation  by  the  rest  of  the  judges.  Although  it  is 
true  that  that  case  may  have  been,  and  probably  was  determined  on 
the  ground  that  the  policy  upon  which  the  premium  had  been  paid 
was  a  gaming  policy,  that  the  parties  were  in  pari  delicto,  and  that 
the  law  would  not  aid  the  plaintiff  in  recovering  back  what  he  had 
paid  under  such  circumstances ;  still  it  is  not  to  be  supposed  that 
Lord  Mansfield  and  Mr.  Justice  Ashurst  would  have  suffered  the 
dictum  to  have  passed  without  animadversion,  if  they  had  not  as- 
sented to  its  correctness. 

In  Knibbs  v.  Hall,  i  Esp.  83,  a  tenant  was  not  permitted  to  re- 
cover back  from  his  landlord,  or  to  be  allowed  by  way  of  set-off, 
a  sum  of  money  which  he  had  paid  beyond  the  rent  which  was 
actually  due  from  him.  The  landlord  demanded  25  guineas,  and 
threatened  him  with  a  distress  if  he  did  not  pay  it.  The  tenant  in- 
sisted that  he  had  taken  the  premises  at  20  guineas,  and  offered  to 
pay  that  sum ;  but  under  the  supposition  that  he  could  not  defend 
himself  against  the  distress,  paid  the  25  guineas,  and  was  not  per- 
mitted to  recover  back  or  set  off  the  excess,  it  being  held  a  voluntary 
payment.  So  in  Brown  v.  McKinnally,  i  Esp.  279,  and  Marriott 
v.  Hampton,  2  Esp.  546,  the  same  principle  was  recognized. 

In  Buller  v.  Harrison,  Cowp.  555,  the  money  was  paid  imder  a 
mistake  in  fact.  The  assurer,  upon  a  representation  that  a  loss  had 
been  sustained  by  one  of  the  perils  covered  by  the  policy,  paid  the 
insurance  to  the  agent  of  the  assured.  But  soon  learning  that  it  was 
a  "foul  loss,"  in  the  language  of  the  case,  he  gave  notice  to  the  agent 
of  the  fact,  and  also  not  to  pay  over  the  money.  The  only  question 
discussed  in  the  case  was,  whether  in  judgment  of  law  the  money 
had  been  paid  over  by  the  agent  before  he  received  the  notice.  The 
plaintiff's  right  to  recover  against  the  principal  was  not  questioned. 

The  case  of  Bilbic  v.  Lumley  and  others,  2  East  469,  was  also  an 
action  by  an  underwriter,  to  recover  back  from  the  assured  £100 
which  he  had  paid  upon  the  policy.  The  ground  upon  which  the 
action  was  brought  was,  that  the  money  had  been  paid  under  a 
mistake,  the  defendant  not  having  disclosed  to  the  plaintiff,  at  the 
time  the  insurance  was  effected,  a  letter  relating  to  the  time  of  the 
sailing  of  the  ship  insured,  which  it  was  admitted  was  material.  But 
it  appeared  that,  before  the  loss  was  adjusted  and  the  money  paid 


IN    GENERAL.  405 

on  the  policy,  all  the  papers,  including  the  letter  in  question,  were 
submitted  to  the  plaintiff.  The  counsel  for  the  plaintiff  put  his 
case  on  the  broad  ground  that  it  was  sufficient  to  sustain  the  action 
that  the  money  had  been  paid  under  a  mistake  of  the  law,  the  plaintiff 
not  being-  apprised  at  the  time  of  the  payment,  that  the  concealment 
of  the  particular  circumstance  disclosed  in  the  letter  was  a  defense 
to  any  action  V4^hich  might  have  been  brought  on  the  policy.  When 
the  case  was  stated  at  bar,  Lord  Ellenijorougii  would  not  hear  it 
argued.  He  said  he  had  never  heard  of  a  case  in  which  a  party  who 
had  paid  money  to  another  voluntarily,  with  a  full  knowledge  of  all 
the  facts  of  the  case,  had  been  permitted  to  recover  it  back,  on  account 
of  his  ignorance  of  the  law,  except  the  case  of  Chatfield  v.  Paxton 
(in  a  note  to  Bilbie  v.  Lumley),  in  which  Lord  Kenyon,  at  nisi 
prius,  had  dropped  an  intimation  of  that  sort.  Now,  upon  ex- 
amination, it  will  be  found  that  in  the  case  of  Chatfield  v.  Paxton, 
a  majority  of  the  judges  put  the  case  upon  the  ground  that  the  pay- 
ment had  been  made  by  the  plaintiff,  not  with  a  full  knowledge  of 
facts,  but  only  under  a  blind  suspicion  of  the  case.  Lord  Ellen- 
borough  says  that  it  was  so  doubtful  on  what  point  that  case  turned, 
that  it  was  not  ordered  to  be  reported. 

In  Stevens  v.  Lynch,  12  East  38,  the  plaintiff  was  the  indorser, 
and  the  defendant  the  drawer  of  a  bill  of  exchange.  The  defense 
was,  that  the  plaintiff  had  given  time  to  the  acceptor  after  his  dis- 
honor of  the  bill.  But  it  appeared  that  the  defendant,  with  a  full 
knowledge  of  that  fact,  said,  "I  know  I  am  liable,  and  if  Jones  (the 
acceptor)  does  not  pay  it,  I  will."  The  court  say  the  defendant 
made  the  promise  with  a  full  knowledge  of  all  the  circumstances, 
and  cannot  now  defend  himself  upon  the  ground  of  his  ignorance  of 
the  law  when  he  made  the  promise. 

The  cases  of  Chatfield  v.  Paxton  and  of  Bize  v.  Dickason,  i  T.  R. 
285,  were  cited  for  the  plaintiff  upon  the  argumexit.  But  the  court 
said  they  considered  those  cases  to  have  proceeded  on  the  mistake 
of  the  person  paying  the  money  under  an  ignorance  or  misapprehen- 
sion of  the  facts  of  the  case. 

In  the  late  case  of  Brisbane  v.  Dacres,  5  Taunt.  144,  this  subject 
was  elaborately  considered  by  the  Court  of  Common  Pleas,  and  the 
principle  of  Bilbie  v.  Lumley  recognized  and  adopted.  Brisbane 
was  the  captain  of  a  frigate  belonging  to  a  squadron  under  the  com- 
mand of  Admiral  Dacres,  the  testator  of  the  defendant,  upon  the 
Jamaica  station ;  and  in  obedience  to  the  orders  of  the  admiral,  in 
April,  1808,  he  received  on  board  his  frigate  $700,000  belonging  to 
government,  and  proceeded  with  the  same  to  Portsmouth.  He  also 
received  on  board  between  one  and  two  million  of  dollars  belonging 
to  individuals,  to  be  delivered  at  the  Bank  of  England.  The  govern- 
ment and  individual  money  was  delivered  according  to  order,  and 
Captain  Brisbane  received  from  the  government  for  the  freight  of 
the  former  £850 ;  and  from  the  Bank  of  England,  upwards  of  £7000 
for  the  freight  of  the  latter.  He  paid  over  to  the  admiral  one-third 
of  the  sums  thus  received,  under  the  belief  that  he  was  legallv  en- 


406  MISTAKE   OF    LAW. 

titled  to  it ;  but  upon  discovering  that  he  was  not,  he  brought  this 
action  to  recover  it  back.  It  was  shown  to  be  the  usage  in  the  navy 
for  the  captains  of  vessels  carrying  public  and  private  treasure,  to 
pay  one-third  of  the  freight  for  the  same  to  the  commander  of  the 
squadron  to  which  they  belonged,  though  it  was  admitted  that  since 
i8oi  the  admiral  had  in  such  cases  no  legal  claim  to  any  portion  of 
the  allowance.  But  the  court  held  that  the  money,  having  been  paid 
with  a  full  knowledge  of  all  the  circumstances  and  facts  in  the  case, 
could  not  be  recovered  back,  because  it  had  been  paid  under  a  misap- 
prehension of  the  law.  As  to  the  freight  for  the  money  belonging 
to  individuals,  it  was  held  that  Captain  Brisbane  had  no  right  to 
carry  it ;  that  the  whole  of  that  part  of  the  transaction  was  illegal ; 
and  that,  the  parties  being  in  pari  delicto,  the  law  would  aid  neither. 
But  as  to  the  other  portion  of  the  demand,  it  was  put  upon  the  broad 
ground  which  I  have  stated,  against  the  opinion  of  Mr.  Justice 
Chaaibre.  Mr.  Justice  Gibbs  says,  where  a  man  demands  money  of 
another  as  a  matter  of  right,  and  he  pays  it  with  a  full  knov/Iedge  of 
the  facts  upon  which  the  demand  is  founded,  he  never  can  recover 
back  the  sum  he  has  so  voluntarily  paid.  By  submitting  to  the  de- 
mand, he  that  pays  the  money  gives  it  to  the  person  to  whom  he 
pays  it,  and  closes  the  transaction  between  them.  He  who  receives 
it  has  a  right  to  consider  it  as  his  without  dispute ;  and  it  would  be 
most  mischievous  and  unjust,  if  he  wdio  has  acquiesced  in  the  right 
by  such  voluntary  payment  should  be  at  liberty,  at  any  time  within 
the  statute  of  limitations,  to  rip  up  the  matter,  and  recover  back  the 
money. 

.  Against  these  cases  and  a  variety  of  others  in  which  the  same 
principle  is  acknowledged  with  more  or  less  distinctness,  there  is 
nothing  to  oppose  but  the  dictum  of  De  Grey,  Ch.  J.,  in  Farmer  v.. 
Arundel,  2  Bl.  R.  825,  and  of  Lord  ]\Iansfield  in  Bize  v.  Dickason, 
I  T.  R.  285.  The  observation  of  Ch.  J.  De  Grey  is,  that  "When 
money  is  paid  by  one  man  to  another,  as  a  mistake,  either  of  fact  or 
of  law,  or  by  deceit,  an  action  will  lie  to  recover  it  back."  But  in 
that  case  the  action  was  not  sustained,  although  the  money  had  been 
paid  by  the  plaintiff  under  a  clear  mistake  of  law.  The  case,  there- 
fore, not  only  did  not  call  for  the  dictum,  but  is  in  direct  hostility 
with  it.  The  proposition  of  Lord  Mansfield  in  Bize  v.  Dickason 
was,  that  "Where  money  is  paid  under  a  mistake,  which  there  was 
no  ground  to  claim  in  conscience,  the  party  may  recover  it  back  in 
an  action  of  assumpsit."  If  his  Lordship  meant  mistake  in  fact,  the 
proposition  is  undoubted  ;  and  that  he  did  so  mean  and  express  him- 
self, Mr.  Justice  Gibbs,  in  his  opinion  in  Brisbane  v.  Dacres,  infers 
with  great  force,  from  the  circumstance  that  Lord  Mansfield  had 
six  years  before,  in  Lowry  v.  Bourdieu,  heard  it  said  by  Mr.  Justice 
BuLLER,  that  "money  paid  in  ignorance  of  the  law  could  not  be 
recovered  back,"  and  had  not  dissented  from  the  doctrine;  and 
BuLLER,  Justice,  sat  by  him  in  Bize  v.  Dickason,  and  would  not 
have  heard  the  contrary  of  that  doctrine  stated  without  noticing  it. 
The  only  point  to  which  the  attention  of  the  defendant's  counsel,  in 


IN    GENERAL.  4O7 

Bize  V.  Dickason,  seems  to  have  been  directed  was,  whether  the  case 
came  within  the  principle  of  Grove  v.  Dubois,  i  T.  R.  112;  and  the 
court  having  expressed  an  opinion  that  it  did,  he  abandoned  the  case, 
without  adverting  to  the  (hstinction  that  in  Grove  v.  Dubois  the 
broker  had  been  allowed  merely  to  set  off  his  demand,  and  here  he 
sought  to  recover  back  a  sum  which  he  had  actually  paid. 

Chief  Justice  Mansfield,  in  Brisbane  v.  Dacres,  in  adverting  to 
these  propositions  of  Ch.  J.  De  Grey  and  Lord  Mansfield,  says, 
"It  certainly  is  very  hard  upon  a  judge,  if  a  rule  which  he  lays  down 
generally  is  to  be  taken  up  and  carried  to  its  full  extent.  Great  cau- 
tion ought  tO'  be  used  by  the  court  in  extending  such  maxims  to  cases 
which  the  judge  who  uttered  them  never  had  in  contemplation," 

If  money  paid  under  a  mistake  of  the  law,  though  with  a  full 
knowledge  of  the  facts  in  the  case,  can  be  recovered  back  in  all  cases 
where  the  party  to  whom  it  is  paid  is  not  in  conscience  and  equity 
entitled  to  it,  what  is  the  practical  distinction  between  a  mistake 
in  fact  and  a  mistake  in  law  ?  A  party  who  has  paid  money  under  a 
mistake  in  fact  cannot  recover  it  back  unless  he  is  equitably  entitled 
to  it.  The  inquiry  in  every  case,  therefore,  must  be,  not  whether  the 
money  was  paid  under  a  misapprehension  of  the  law,  or  in  ignorance 
of  the  fact,  for  that  is  immaterial,  but  whether  the  party  to  whom  it 
was  paid  can  in  equity  and  conscience  retain  it.  If  he  cannot,  if  there 
was  any  mistake  of  any  character,  he  shall  refund. 

If  this  be  so,  why  has  this  question  been  so  frequently  and  elabo- 
rately discussed,  not  only  in  the  English,  but  in  our  own  courts ; 
and  not  only  in  the  courts  of  common  law,  but  in  courts  of  equity? 
How  are  the  cases  of  Bilbie  v.  Lumley  and  Brisbane  v.  Dacres  to  be 
reconciled  with  this  principle?  What  ground  of  conscience  or  equity 
had  Admiral  Dacres  for  retaining  the  money  paid  to  him?  He  had 
neither  incurred  hazard  nor  rendered  any  labor  or  service  in  its  trans- 
portation. Captain  Brisbane  was  not  his  servant ;  nor  was  the  ship 
which  carried  it  his  property.  Chief  Justice  Mansfield,  in  his 
solicitude  to  avoid  collision  with  the  dicta  of  Chief  Justice  De  Grey 
and  Lord  Mansfield,  does  indeed  suggest  a  ground  of  equity  for  the 
defendant.  He  says,  "So  far  from  its  being  contrary  to  acquum  et 
bomim,  I  think  it  would  be  most  contrary  to  aeqnuni  et  honiim  if  he 
were  obliged  to  repay  it ;  for  see  how  it  is :  If  the  sum  be  large,  it 
probably  alters  the  habits  of  his  life ;  he  increases  his  expenses ;  he 
has  spent  it  over  and  over  again ;  perhaps  he  cannot  pay  it  at  all,  or 
not  without  great  distress."  If  the  fact  of  having  expended  the 
money,  or  of  its  being  inconvenient  to  repay  it,  is  a  sufficient  ground 
of  equity  to  enable  the  party  who  has  received  it  under  a  mistake  of 
law  to  retain  it,  I  apprehend  that  it  will  practically  amount  to  the 
same  thing  as  holding  that  it  shall  not  be  recovered  back.  But  with 
great  respect,  I  think  his  Lordship  might  better  have  denied  those 
dicta  to  be  law,  as  Lord  Ellenborough  did  in  Bilbie  v.  Lumley, 
than  to  have  sought  to  evade  them  by  this  gloss. 

Chief  Justice  Marshall  thought  there  was  a  distinction  between 
a  mistake  in  fact  and  a  mistake  in  law,  when  he  said,  in  Hunt  v. 


408  MISTAKE    OF    LAW. 

Rousmanier,  8  Wheat,  215:  "Although  we  do  not  find  the  naked 
principle  that  relief  may  be  granted,  on  account  of  ignorance  of  law, 
asserted  in  the  books,  we  find  no  case  in  which  it  has  been  decided 
that  a  plain  and  acknowledged  mistake  in  law  is  beyond  the  reach  of 
equity."  Chancellor  Kent  thought  such  a  distinction  existed,  when 
he  said,  in  Lyon  v.  Richmond,  2  Johns.  Ch.  51,  "Courts  do  not  under- 
take to  relieve  parties  from  their  acts  and  deeds  fairly  done,  on  a  full 
knowledge  of  facts,  though  under  a  mistake  of  the  law.  Every  man 
is  to  be  charged  at  his  peril  with  a  knowledge  of  the  law ;  there  is 
no  other  principle  which  is  safe  or  practicable  in  the  common  inter- 
course of  mankind."  The  principle  upon  which  courts  refuse  to 
relieve  against  mistakes  in  law  is,  that  in  judgment  of  law  there  is 
no  mistake ;  every  man  being  held,  for  the  wisest  reason,  to  be  cog- 
nizant of  the  law.  The  act,  therefore,  against  which  the  party  seeks 
relief  is  his  own  voluntary  act,  and  he  must  abide  by  it.  This  prin- 
ciple steers  entirely  clear  of  the  conscience  or  equity  of  the  transac- 
tion. 

In  this  case,  therefore,  the  rent  having  been  reserved  in  sterling 
money,  and  its  value  in  our  currency  being  fixed  by  statute,  and 
therefore  a  question  of  law,  if  the  plaintiff,  on  settling  his  rent  at  the 
rate  of  £4  14s.  currency  for  £2  los.  sterling,  acted  under  an  erroneous 
impression  that  that  was  its  legal  value,  he  cannot  now  recover  back 
the  excess.  The  rent  was  demanded  by  the  landlord  as  his  right.  By 
submitting  to  the  demand,  as  Mr.  Justice  Gibbs  expressed  it,  he 
gives  the  money  to  the  party  to  whom  he  pays  it,  and  closes  the 
transaction  forever.  The  judgment  of  the  common  pleas  must  be  re- 
versed 

Judgment  of  reversal.^ 

^In  Scott  V.  Ford,  78  Pac.  (Ore.)  742  (1904),  there  is  an  extended  re- 
consideration of  the  question  of  the  recovery  of  money  paid  under  mistake, 
either  of  fact  or  of  law,  with  a  review  of  all  the  principal  authorities.  In 
Cooper  v.  Phibbs,  L.  R.  2  H.  L.  149,  170  (1867),  Lord  Westbury,  in  his 
opinion,  says:  "It  isl  said,  'Ignorantia  juris  hand  excnsat;'  but  in  that  maxim 
the  word  'jus'  is  used  in  the  sense  of  denoting  general  law,  the  ordinary 
law  of  the  country.  But  when  the  word  7"-^'  is  used  in  the  sense  of  denoting 
a  private  right,  that  maxi.m  has  no  application.  Private  right  of  ownership 
is  a  matter  of  fact ;  it  may  be  the  result  also  of  matter  of  law ;  but  if  parties 
contract  under  a  mutual  mistake  and  misapprehension  as  to  their  relative 
and  respective  rights,  the  result  is,  that  that  agreement  is  liable  to  be  set 
aside  as  having  proceeded  upon  a  common  mistake.  Now,  that  was  the  case 
with  these  parties — the  respondents  believed  themselves  to  be  entitled  to  the 
property,  the  petitioner  believed  that  he  was  a  stranger  to  it,  the  mistake  is 
discovered,  and  the  agreement  cannot  stand."  In  Alton  v.  First  Nat.  Bank, 
157  Mass.  341,  343  (1892),  Holmes,  J.,  comments  upon  the  above  statement 
as  follows:  "Lord  Westp.ury  sometimes  is  supposed  to  have  taken  a  dis- 
tinction aa  to  the  effect  of  a  mistake  of  law  according  to  whether  the  mis- 
taken principle  is  general  or  special.  Cooper  v.  Phibbs,  L.  R.  2  H.  L.  149, 
170.  But  in  the  often-quoted  passage  of  his  judgment  he  only  meant  that 
certain  words,  such  as  ownership,  marriage,  settlement,  etc.,  import  both  a 
conclusion  of  law  and  facts  justifying  it,  so  that,  when  asserted  without  ex- 
planation of  what  (he  facts  relied  on  arc,  they  assert  the  existence  of  facts 
sufficient  to  justify  the  conclusion,  and  a  mistake  induced  by  such  an  assertion 
is  a  mistake  of  fact.     In  the  case  before  him  the  mistake  was  one  concerning 


IN    GENERAL.  ^OQ 

HEMPHILL  V.  MOODY. 

64  Ala.  468. — 1879. 

Appeal  from  the  Chancery  Court  of  Tuskaloosa. 

Stone,  J, — It  is  a  maxim  born  of  necessity,  that  all  men  are  con- 
clusively presumed  to  know  the  law.  Without  this,  legal  accounta- 
bility could  not  be  enforced,  and  judicial  administration  would  be 
embarrassed  at  every  step.  The  necessity  of  this  rule  is  more  felt 
and  acknowledged  in  criminal  accountability,  than  in  mere  civil  obli- 
gations. As  a  corollary,  there  has  grown  up  another  maxim,  that 
courts  will  not  reform  or  redress  those  acts  of  parties,  which  are  the 
result  of  pure  mistake  of  law.  Jones  v.  Watkins,  i  Stew.  81  ;  Trust- 
ees v.  Keller,  i  Ala.  406;  Haden  v.  Ware,  15  Ala.  149;  Dill  v. 
Shahan,  25  Ala.  694;  Town  Council  of  Cahaba  v.  Burnett,  34  Ala. 
400;  Lesslie  v.  Richardson,  60  Ala.  563.  But,  in  civil  proceedings, 
this  rule,  owing  to  its  hardship,  has  been  treated  as  one  stricti  juris; 
and  if  there  was  intermixed  with  the  mistake  of  law  any  mistake  of 
fact,  courts  have  willingly  seized  upon  it,  and  made  it  the  ground  of 
relief.  There  is  a  class  of  cases,  hard  to  distinguish  from  mistakes 
of  law,  where,  through  mistake,  a  written  agreement  contains  sub- 
stantially more  or  less  than  the  parties  intended,  or  where,  from  ig- 
norance or  want  of  skill  in  the  draughtsman,  the  object  and  inten- 
tion of  the  parties,  as  contemplated  by  the  agreement,  is  not  ex- 
pressed in  the  written  instrument,  by  reason  of  the  use  of  inapt 
expressions ;  in  which  the  Court  of  Chancery,  on  clear  and  satisfac- 
tory proof  of  the  mistake,  will  reform  such  agreement,  and  make  it 
conform  to  the  true  intention  of  the  contracting  parties,  i  Brick. 
Dig.  681,  §§  606,  610.  The  principle  on  which  courts  relieve,  in 
cases  falling  within  this  class,  is  that  throv:gh  ignorance  or  misap- 
prehension of  the  legal  effect  of  the  terms  agreed  upon,  the  parties 
have  made  a  contract  variant  in  legal  construction  from  the  one  in- 
tended. Trapp  V.  Moore,  21  Ala.  693;  Larkins  v.  Biddle,  i  lb.  252. 
We  refer  to  this  class  of  cases,  not  because  they  shed  any  direct 
light  on  the  case  in  hand,  but  because  they  show  that  courts  seize 
upon  small  circumstances,  to  relieve  parties  of  a  hard,  though  nec- 
essary rule.  And  there  are  other  cases  in  which  this  rule  is  relaxed. 
Hardigree  v.  Mitchum,  51  Ala.  151. 

In  the  present  case,  Moody,  the  administrator  of  Sims,  paid  to  the 
administrator  of  Aaron  Ready  $2,000,  the  sum  of  a  pecuniary  legacy 
bequeathed  by  the  will  of  Sims.  In  the  case  of  Hemphill  v.  Moody, ^ 
we  held  this  payment  was  unauthorized,  and  that  Moody  was  not 
entitled  to  a  credit  for  it  in  his  settlement  as  administrator  of  Sims. 
One  purpose  of  the  present  bill  is  to  have  that  payment  applied  to 

the  ownership  of  a  fishery,  and   was   induced  by  a  general   statement  of  a 
certain  person  that  he  owned  it.     L.  R.  2  H.  L.  164.     Windram  v.  French, 
151  Mass.  547,  551." 
^62  Ala.  510. 


4IO  MISTAKE    OF    LAW. 

the  extinguishment  of  the  distributive  interest  of  Aaron  Ready's 
children  in  said  estate.  The  averments  of  the  bill  are,  that  the  chil- 
dren of  Aaron  Ready  and  the  children  of  Jerusha  Ready,  his  wife, 
daughter  and  legatee  of  testator  Sims,  are  the  same;  that  they  are 
insolvent ;  that  the  $2,000  paid  by  mistake  to  Aaron  Ready's  admin- 
istrator, were  distributed  and  paid,  less  expenses  of  administration, 
to  said  children  of  Aaron  and  Jerusha  Ready ;  that  in  this  way  they, 
the  children — distributees  alike  of  Aaron  and  Jerushy  Ready — have 
received  of  the  moneys  of  complainant  more  than  their  share  of  the 
undistributed  assets  of  the  estate  of  testator  Sims,  and  that  it  is 
contrary  to  equity  and  good  conscience  that  they  should  again  re- 
ceive payment  out  of  the  private  purse  of  complainant  Moody.  The 
answer,  if  we  were  allowed  to  look  to  it,  denies  that  the  children  of 
Aaron  Ready  and  the  children  of  Jerusha  Ready,  are  entirely  the 
same ;  sets  up,  that  after  the  death  of  Jerusha  Ready,  Aaron  married 
a  second  time,  and  left  issue  by  the  second  marriage,  who  shared  in 
the  distribution  of  the  $2,000  paid  to  Ready's  administrator.  In  the 
present  state  of  the  record,  and  on  the  present  appeal,  we  cannot 
know  or  inquire  how  this  question  stands.  Only  the  averments  of 
the  bill  are  before  us.  Taking  those  averments  as  a  guide,  the  share 
of  the  undistributed  assets  of  testator's  estate  to  which  Mrs.  Ready's 
administratrix  is  entitled,  is  $1,100  or  $1,200.  There  is  no  averment 
in  the  bill  showing  the  amount  of  the  $2,000  distributed  and  paid  to 
the  distributees  of  Aaron  Ready,  which  went  to  the  distributees  of 
Jerusha  Ready.  Guided,  however,  by  the  bill,  the  sum  distributed 
and  paid  to  them  exceeds  the  distributive  share  of  Jerusha  Ready's 
estate  in  the  undistributed  assets.  The  bill  avers  that  Jerusha 
Ready  died  many  years  ago ;  that  her  estate  owes  no  debts,  and  that 
the  only  function  and  duty  her  administratrix  will  be  required  to 
perform,  is  the  distribution  of  her  intestate's  distributive  share 
among  her  distributees,  next  of  kin. 

We  do  not  think  this  case,  so  far  as  it  seeks  relief  against  Jerusha 
Ready's  distributees,  stands  on  the  naked  principle  of  a  suit  to  re- 
cover back  money  paid  under  a  mistake  of  law.  The  bill  makes  no 
effort  to  recover  the  money  back.  Its  object  is,  to  have  a  payment, 
actually  made,  applied  in  extinguishment  or  reduction  of  a  debt  or 
liability  actually  due  and  owing.  Guided,  as  we  have  said,  by  the 
averments  of  the  bill.  Moody,  the  complainant,  was  liable  to  pay — 
was  indebted — to  Jerusha  Ready's  estate,  to  be  distributed  and  paid 
to  her  next  of  kin,  $1,100  or  $1,200 ;  no  more.  He  has  paid,  and  they 
have  received  a  larger  sum  than  that,  to  which  they  had  no  other 
rightful  claim.  They  cannot  demand  a  second  payment,  on  the  tech- 
nical ground  that,  when  the  payment  was  made,  it  was  erroneously 
supposed  to  be  due  on  another  account.  Payment  discharges  a  debt, 
no  matter  when,  or  by  whom  made.     *     *     * 

^  Tn  Phillips,  Ex'r,  v.  McCnnira.  59  Ohio  i  C1898),  an  executor  who  paid, 
uiiflcr  mistake  of  law,  a  Icpacy  to  one  not  entitled  was  not  allowed  to  recover 
back,  there  being  no  mistake  of  fact. 


IN    GENERAL.  4II 

PITCHER  V.  THE  TURIN  PLANK  ROAD  COMPANY. 
10  Barb.  (N.  Y.)  436.-1851. 

Appeal  by  the  defendants  from  a  judgment  of  the  county  court 
of  Lewis  county,  affirming  the  judgment  of  a  justice  of  the  peace. 
The  action  was  brought  by  the  plaintiff,  after  attaining  full  age,  to 
avoid  an  agreement  made  during  infancy  for  the  compromise  of  a 
suit  with  which  he  was  threatened,  and  to  recover  back  money  paid 
in  pursuance  o£  such  agreement.  The  justice  rendered  a  judgment 
in  favor  of  the  plaintiff  for  $10  and  costs. 

Gridley,  p.  J. — The  plaintiff  in  the  justice's  court  sued  the  plank 
road  company  to  recover  back  the  sum  of  $10,  which  he  had  paid  to 
compromise  or  settle  a  threatened  suit  against  him,  for  the  penalty 
of  $25  for  running  the  gate  of  the  defendant.  It  is  true  the  plaintiff 
would  be  liable  at  common  law  for  the  trespass ;  but  the  justice  must 
have  found  that  the  compromise  was  made  under  the  mistaken  sup- 
position that  he  was  liable  for  the  penalty  of  $25  ;  and  that  finding, 
even  if  founded  on  less  conclusive  evidence  than  it  is,  would  be  bind- 
ing on  this  court.  Noyes  v.  Hewitt,  18  Wend.  141  ;  Stryker  v.  Ber- 
gen, 15  Wend.  490. 

The  mistake  was  mutual ;  both  the  agent  of  the  company  and  the 
plaintiff  supposed  that  the  clause  giving  the  penalty,  in  the  turnpike 
act,  had  been  incorporated  into  the  plank  road  act,  of  1847.  The  mis- 
take therefore  was  not  a  pure  mistake  of  law.  It  was  in  one  sense 
a  mistake  of  fact.  Neither  party  supposed  that  a  penalty  of  $25  was 
given  by  the  common  law.  Neither  party  had  any  doubt  that  if  the 
statute  had  given  a  penalty  for  running  a  gate  situated  on  a  plank 
road,  the  penalty  was  collectible.  Both  parties  assumed  that  a  sec- 
tion giving  the  penalty  had  been  incorporated  into  the  plank  road  act. 
In  that  assumption  they  were  mistaken.  It  cannot  be  doubted  that 
this  mistaken  belief  was  a  powerful  motive  with  the  plaintiff  in  mak- 
ing the  settlement.  If  he  could  compromise  a  liability  for  $25  by 
the  payment  of  $10,  we  can  all  see  it  would  be  a  wise  and  prudent 
act  to  do  so.  Whereas  he  might  be  willing  to  take  his  chance  of  a 
suit  at  common  law,  where  the  damages  might  be  nominal  only. 

No  one  will  dispute  the  general  proposition  that  ignorance  of  the 
law  excuses  no  one, — every  man  being  presumed  to  know  the  law. 
But  I  do  not  think  that  rule  applies  to  the  present  case.  This,  as  I 
before  remarked,  is  not  a  case  of  pure  mistake  of  law.  It  was  a  com- 
promise of  a  claim  for  a  penalty,  which  the  law  did  not  give.  It  was 
not  a  compromise  of  a  doubtful  claim,  but  of  a  claim  for  w^hich  there 
was  no  foundation  at  all,  when  it  was  ascertained  that  the  penalty 
in  question  had  not  been  applied  to  plank  roads.  It  was  a  case  where 
the  settlement  was  made  under  the  mistaken  idea  that  the  act  giv- 
ing the  penalty  had  been  applied  to  plank  roads.  In  such  cases  the 
rule  that  no  man  is  excused  by  reason  of  ignorance  of  the  law  does 
not  apply.    The  daughter  of  a  freeman  of  London  had  a  legacy  of 


412  MISTAKE    OF    LAW. 

iio,ooo  left  her  by  the  will  of  her  father,  on  condition  she  should 
release  her  orphanage  share.  She  accepted  the  legacy  and  executed 
the  release.  This  release  was  set  aside,  although  no  fraud  was  im- 
puted to  the  executor,  the  orphanage  share  being  £40,000,  Judge 
Story  says  "it  was  a  case  of  clear  surprise  in  matters  of  fact  as  well 
as  law,"  I  Story  Eq.  §§  117,  118.  So  in  Evans  v.  Llewellyn,  i  Story 
Eq.  §  119,  the  decision  was  placed  entirely  on  the  ground  of  sur- 
prise, "the  conveyance  having  been  obtained  and  executed  improvi- 
dently."  Lord  Kenyon  said  "The  party  was  taken  by  surprise.  He 
had  not  sufficient  time  to  act  with  caution,  and  therefore,  though 
there  was  no  actual  fraud,  it  was  something  like  fraud,  for  an  un- 
due advantage  was  taken  of  his  situation.  I  am  of  opinion  that  the 
party  was  not  competent  to  protect  himself."  The  application  of 
this  doctrine  to  the  case  under  consideration  will  be  apparent  when 
we  remember  that  one  of  the  parties  was  an  infant,  and  the  other 
party  was  threatening  to  make  him  pay  the  $25  "or  put  him  through 
on  it,"  unless  he  paid  the  $10. 

Again :  where  one  has  a  clear  title,  and  under  the  idea  of  a  com- 
promise gives  away  a  part  of  what  was  by  law  his  own,  he  is  en- 
titled to  relief.  Not,  however,  where  there  is  a  disputed  question,  and 
the  compromise  is  fair.  Judge  Story  says,  "In  the  former  cases  the 
party  seems  to  labor,  in  some  sort,  under  a  mistake  of  fact  as  well  as 
of  law.  He  supposes,  as  a  matter  of  fact,  that  he  has  no  title,  and 
that  the  other  party  has  a  title  to  the  property,"  Story  Eq.,  §  130.  In 
this  case  the  plank  road  company  claimed  to  have  a  clear  right  to 
the  penalty  of  $25  ;  and  the  plaintiff  was  induced  to  believe  that  they 
had  such  a  right,  by  the  mistaken  supposition  that  such  a  claim  was 
made  applicable  to  the  plank  road  act.  Now  when  it  turns  out  that 
this  was  a  common  error  of  both  parties,  the  plaintiff  is  entitled  to 
relief,  on  the  ground  that  the  mistake  was  one  rather  of  fact  than  of 
law. 

The  decision  may  well  rest  upon  the  ground  on  which  the  county 
judge  has  placed  it ;  viz.  that  this  is  a  case  where  the  acts  of  the  in- 
fant may  be  inquired  into  for  the  purpose  of  seeing  whether  they 
are  beneficial  to  his  interest  or  not.  This  has  been  done  by  the  jus- 
tice, who  determined  that  the  settlement  or  compromise  was  not 
beneficial  to  his  interests,  and  set  it  aside.  In  the  case  of  Keane  v. 
Boycott,  2  H.  Black.  511,  Lord  Chief  Justice  Eyre  laid  down  the 
rule  that  when  the  court  could  pronounce  the  contract  to  be  for  the 
benefit  of  the  infant,  as  for  necessaries,  it  was  good ;  when  the  court 
could  pronounce  it  to  be  for  the  prejudice  of  the  infant,  it  was  void ; 
and  in  those  cases  where  the  benefit  or  prejudice  was  uncertain,  the 
contract  was  voidable  only.  In  the  case  of  Grace  v.  Wilber,  10 
Johns.  455,  it  was  held  that  an  infant  was  not  liable  to  be  enrolled 
in  the  militia,  while  under  eighteen  years  of  age.  And  though  he 
agrees,  with  the  consent  of  his  father,  to  serve  as  a  substitute  for 
another,  in  consideration  of  a  certain  sum  of  money,  which  is  paid, 
such  a  contract  is  not  binding  on  the  infant ;  and,  the  infant  having 
deserted  and  having  been  aj^prchended  as  a  deserter,  brought  his 


IN    GKNERAL.  4I3 

action  for  trespass  and  false  imprisonment  against  the  officer  arrest- 
ing him,  and  recovered.  Now  upon  these  authorities,  it  was  for  the 
justice  to  decide  whether  the  $to  were  paid  to  settle  the  claim  for 
the  penalty,  or  to  settle  the  whole  claim  against  the  plaintiff,  for 
trespass  at  common  law  for  running  through  the  gate.  He  has 
found,  as  we  must  conclude,  that  the  money  was  paid  solely  to  settle 
the  claim  for  the  penalty,  when  no  law  existed  making  him  liable  to 
a  penalty.  Having  come  to  that  conclusion,  he  must  have  held  that 
a  settlement  of  a  claim  which  had  no  legal  existence,  and  the  contract 
for  the  payment  of  $io,  in  liquidation  of  such  a  claim,  was  not  bene- 
ficial to  the  infant.  If  the  justice  held  thus,  and  we  must  presume 
that  he  did,  then  we  are  not  at  liberty  to  review  his  judgment.  There 
was  at  least  some  evidence  on  which  he  founded  his  judgment. 
See  18  Wend.  141.  This  decision  the  county  judge  held  to  be  bind- 
ing on  him ;  and  we  must  regard  it  as  conclusive  upon  us. 

Judgment  affirmed.^ 


NEEDLES  V.  BURK. 

81  Mo.  569.-1884. 

Hough,  C.  J. — The  plaintiff  sues  the  defendant  to  recover  back 
from  him  the  value  of  certain  property  which  he  alleges  he  deliv- 
ered to  the  defendant,  upon  representations  made  by  him  to  the 
plaintiff,  that  the  plaintiff's  infant  son  had  carelessly  and  negligently 
set  fire  to  and  burned  defendant's  barn,  of  the  value  of  $600,  and 
upon  the  further  representation  that  the  plaintiff  was  liable  for  said 
damage,  and  that  defendant's  neighbors  all  regarded  him  as  liable, 
and  were  urging  him,  the  defendant,  to  sue  plaintiff  therefor,  that 
being  ignorant  whether  or  not  his  infant  son  had  set  fire  to  and 
burned  defendant's  barn,  and,  also,  of  his  rights  and  liabilities  in 
the  premises,  and  relying  upon  the  representations  so  made  to  him 
by  the  defendant,  which  representations  were  made  by  the  defendant 
without  knowing  them  to  be  true,  and  which  were,  in  fact,  untrue, 
and  which  were  made  for  the  purpose  of  obtaining  from  the  plaintiff" 

*In  Renard  v.  Fiedler,  3  Duer  (N.  Y.)  318,  323  (1854),  the  court  in  dis- 
cussing the  question  of  recovery  of  money  paid  under  mistake  of  law  or  mis- 
take of  fact  says :  "We  confess  that  we  a''e  not  at  all  disposed  to  extend  the 
doctrine,  which  makes  a  distinction  between  different  causes  of  error,  by 
denying  a  remedy  in  one  class  of  cases  which  it  grants  in  another,  although 
in  both  the  error,  if  not  corrected,  is  equally  a  source  of  injustice.  It  is  pe- 
culiar, and  not  very  creditable  to  the  system  of  jurisprudence  that  we  have 
adopted  and  follow.  It  has,  doubtless,  sprung  from  the  misapplication  of  the 
maxim  that  "ignorantia  Icgis  ncmincm  excusat."  That  every  man  must  be 
presumed  to  know  the  law  is  indeed  a  necessary  rule  in  the  administration  of 
criminal  justice,  but  its  application  to  bar  a  civil  remedy  is  not  demanded  by 
any  reasons  of  public  policy,  and,  in  many  cases,  is  a  resort  to  a  fiction,  not 
for  the  purpose  of  promoting,  but  of  defeating  justice.  Hence,  courts  of 
equity  have  long  struggled  aeainst  the  doctrine  and  have  excepted  many 
cases  from  its  operation ;  and  vre  think  that  courts  of  law,  when  not  bound 
down  bj^  precedents,  may  reasonably  follow  the  example." 


414  MISTAKE    OF    LAW. 

his  said  property,  plaintiff  delivered  said  property  to  the  defendant 
in  payment  of  said  supposed  liability.     *     *     * 

It  is  settled  in  this  state  that  a  father  is  not  responsible  for  in- 
juries inflicted  through  the  negligence  or  wilful  wrong  of  his  minor 
child.  Baker  v.  Haldeman,  24  Mo.  219.  The  plaintiff,  therefore, 
was  not  liable  to  the  defendant,  Burk,  for  the  value  of  his  barn,  even 
though  it  had  been  set  on  fire  by  the  plaintiff's  son.  If  the  plaintiff's 
son  had  fired  the  barn,  and  in  consequence  thereof,  but  in  ignorance 
of  the  fact  that  he  was  not  legally  liable  therefor,  the  plaintiff  had 
paid  the  defendant  the  amount  of  his  loss,  it  would  not  be  pretended 
that  he  could  recover  it  back.  But  it  is  contended  that,  in  addition 
to  the  mistake  of  law  made  by  the  plaintiff,  he  was  induced  by  the 
misrepresentations  of  the  "defendant  to  believe  that  his  son  did  fire 
the  barn,  and  that,  as  this  belief  on  his  part  caused  him  to  pay  the 
defendant  the  sum  claimed,  it  constitutes  such  a  mistake  of  fact  as 
entitles  him  to  recover  back  the  sum  paid. 

There  can  be  no  question  that  where  money  has  been  paid  under 
a  mistake  of  fact,  which  causes  an  unfounded  belief  of  a  liability  to 
pay,  it  may  generally  be  recovered  back,  i  Parsons  on  Con.  465  (6th 
Ed.).  But  it  is  also  true  that  in  order  to  entitle  a  person  to  recover 
back  money  paid  under  a  miistake  of  fact  the  mistake  must  be  as  to 
a  fact  which,  if  true,  would  make  the  person  paying  liable  to  pay  the 
money,  not  where,  if  true,  it  would  merely  make  it  desirable  that  he 
should  pay  the  money.  Aiken  v.  Short,  i  Hurlst.  &  N.  Exch.  210. 
So,  that  if  the  alleged  representation  of  the  defendant  to  the  plain- 
tiff, that  his  son  had  burned  his  barn,  was  a  mere  mistake  this  would 
not  of  itself  suffice  to  warrant  a  recovery.  To  entitle  the  plaintiff  to 
recover,  it  should  be  shown,  not  only  that  the  plaintiff's  son  did  not 
burn  the  barn,  but  that  the  plaintiff  was  induced,  by  the  representa- 
tions of  the  defendant,  to  believe  that  his  son  did  burn  the  barn, 
and  that  defendant  did  not  believe  his  representations  to  be  true,  or 
knew  that  they  were  untrue ;  in  other  words,  that  such  representa- 
tions were  fraudulently  made.  Where  money  is  paid  upon  the 
fraudulent  representation  of  a  fact  which,  if  true,  would  create  no 
legal  obligation,  but  would  naturally  excite  emotions  of  benevo- 
lence, sympathy  or  compassion,  and  superinduce  a  sense  of  moral 
obligation  which  ])rompted  the  payment  it  is  right  and  just  that  the 
party  paying  should  be  entitled  to  recover  back  the  sum  which  he 
has  thus  been  fraudulently  induced  to  pay.  If  a  simple  mistake  of 
fact  which  creates  no  legal  liability,  and  which  is  wholly  discon- 
nected from  any  fraud,  induce  a  payment  of  money  to  one  who  is 
lawfully  entitled  to  compensation,  but  not  from  the  party  paying, 
while  there  may  be  a  moral  obligation  to  return  the  money,  such 
moral  obligation  cannot  be  made  the  basis  of  an  implied  legal  obli- 
gation which  will  sustain  an  action. 

The  judgment  will  be  reversed  and  the  cause  remanded.  All 
concur.' 

'  Contra,  Bishop  v.  Corning,  2>7  App.  D.  (N.  Y.)  345  (1899). 


/ 


IN    GENERAL.  4I5 

WILLIAM    CULBREATH   v.   JAMES   M.   AND   DANIEL   G. 

CULBREATH. 

7  Ga.  64. — 1849. 

Obadiah  M.  Culbreath  died  intestate  leaving  neither  wife  nor 
children.  His  nearest  of  kin  were  seven  surviving  brothers  and  sis- 
ters and  the  children  of  a  deceased  sister.  William  Culbreath,  the 
administrator,  under  a  misapprehension  of  the  law,  divided  the  estate 
equally  between  the  seven  brothers  and  sisters,  to  the  exclusion  of 
the  children  of  the  deceased  sister.  Subsequently,  these  children  in- 
stituted suit  against  the  administrator  and  recovered  the  one-eighth 
of  the  estate.  The  present  action  was  by  William  Culbreath  against 
two  of  the  distributees,  to  recover  back  the  amount  overpaid  on  ac- 
count of  this  mistake.  Upon  an  agreed  statement  of  the  facts  in 
the  court  below,  the  presiding  judge  awarded  a  nonsuit  against  the 
plaintiff,  who  appealed  to  this  court. 

Nisbet,  J. — *  *  *  *  'Yi^Q  question  is,  can  a  party  recover 
back  money  paid,  W'ith  a  knowledge  of  all  the  facts,  through  mistake 
of  the  law  ? 

We  are  fully  aware  that  the  authorities  upon  this  question  are  in 
conflict,  as  well  in  England  as  in  this  country.  Great  names  and 
courts  of  eminent  authority  are  arrayed  on  either  side.  It  is  not 
one  of  those  questions  upon  which  the  mind  promptly  and  satisfac- 
torily arrives  at  a  conclusion.  This  is  true  in  reference  both  to  prin- 
ciple and  authority.  It  is  not  surprising,  therefore,  that  Judge 
Alexander  and  this  court  should  differ.  I  think,  and  I  shall  try  to 
prove,  that  the  weight  of  authority  is  with  us.  If  it  were  not  so — if 
authorities  were  balanced — we  feel  justified  in  kicking  the  beam,  and 
ruling  according  to  that  naked  and  changeless  equity  which  forbids 
that  one  man  should  retain  the  money  of  his  neighbor,  for  which 
he  paid  nothing,  and  for  which  his  neighbor  received  nothing;  an 
equity  which  is  natural,  which  savages  understand,  which  cultivated 
reason  approves,  and  which  Christianity  not  only  sanctions  but  in 
a  thousand  forms  has  ordained.  In  ruling  in  favor  of  these  actions, 
we  aim  at  no  visionary  moral  perfectibility.  We  feel  the  necessity 
of  practicable  rules,  by  which  rights  are  to  be  protected  and  wrongs 
redressed.  We  know  the  necessity,  too,  of  general  rules,  and  how 
absurd  would  be  that  attempt,  which  seeks  to  administer  the  equity 
which  springs  from  each  and  every  case.  The  insufficiency  which 
marks  all  lawgivers,  laws,  and  tribunals  of  justice,  makes  that  a 
hopeless  thing.  Still,  where  neither  positive  law  nor  a  w^ell  settled 
train  of  decisions  impose  upon  courts  a  prohibition,  they  are  at  lib- 
erty, nay,  bound  to  respect  the  authority  of  natural  equity  and  sound 
morality.  Where  these  are  found  on  one  side  of  a  doubtful  ques- 
tion, they  ought  to  cast  the  scale.  Moreover,  we  believe  that  the  rule 
we  are  about  to  lay  down  may  be  so  guarded,  as  in  its  application  to 
be  both  practicable  and  politic. 


4l6  MISTAKE    OF    LAW. 

It  is  difficult  to  say  that  an  action  for  the  recovery  of  money  paid 
by  mistake  of  the  law  will  not  lie,  upon  those  principles  which  gov- 
ern the  action  of  assumpsit  for  money  had  and  received.  Those 
principles  are  well  settled  since  the  great  case  of  Moses  v.  Macfer- 
lan,  in  2  Burrow  1005.  The  grounds  upon  which  that  necessary  and 
most  benign  remedy  goes,  are  there  laid  down  by  Lord  Mansfield. 
This  claim  falls  within  the  principles  there  settled,  and  cannot  be 
distinguished  from  cases  which  have  been  ruled  to  fall  within  them, 
but  by  an  arbitrary  exclusion.  I  am  not  now  using  the  case  of  Moses 
V.  Macferlan  as  the  authority  of  a  judgment  upon  the  precise  ques- 
tion made  in  this  record ;  although  Lord  Mansfield  there  held,  that 
money  paid  by  mistake  could  be  recovered  back  in  this  action,  with- 
out distinguishing  between  mistake  of  law  and  fact.  I  refer  to  it, 
to  demonstrate  what  are  the  principles  upon  which  the  action  is 
founded.  It  is  not  founded  upon  the  idea  of  a  contract.  In  answer 
to  the  objection,  that  assumpsit  would  lie  only  upon  a  contract,  ex- 
press or  implied.  Lord  Mansfield  said,  "If  the  defendant  be  under 
an  obligation,  from  the  ties  of  natural  justice,  to  refund,  the  law 
implies  a  debt,  and  gives  this  action,  founded  in  the  equity  of  the 
plaintiff's  case,  as  if  it  were  upon  contract."  Again :  "One  great 
benefit  derived  to  a  suitor  from  the  nature  of  this  action  is,  that  he 
need  not  state  the  special  circumstances  from  which  he  concludes 
that  ex  aequo  et  bono  the  money  received  by  the  defendant  ought  to 
be  deemed  belonging  to  him." 

"The  defendant,"  says  his  Lordship,  farther,  "may  defend  him- 
self by  everything  which  shows  that  the  plaintiff,  ex  aequo  et  bono, 
is  not  entitled  to  the  whole  of  his  demand,  or  to  any  part  of  it."  His 
summary  is  in  the  following  words :  "In  one  word,  the  gist  of  this 
action  is,  that  the  defendant,  upon  the  circumstances  of  the  case,  is 
obliged  by  the  ties  of  natural  justice  and  equity  to  refund  the 
money."  In  the  language  of  the  civilians,  from  whom  Lord  Mans- 
field borrowed  many  valuable  principles,  "Hoc  natiira  aequiim  est, 
neminem  cum  altcrius  detrimcnto  fieri  locupletiorem." 

If  there  is  justice  in  the  plaintiff's  demand,  and  injustice  or  un- 
conscientiousness  in  the  defendant's  withholding  it,  the  action  lies ; 
or,  to  use  more  appropriate  language,  the  law  will  compel  him  to 
pay.  Now,  when  money  is  paid  to  another,  under  a  mistake  as  to 
the  payer's  legal  obligation  to  pay,  and  the  payee's  legal  right  to  re- 
ceive it,  and  there  is  no  consideration,  moral  or  honorary  or  benevo- 
lent, between  the  parties,  by  the  ties  of  natural  justice  the  payer's 
right  to  recover  it  back  is  perfect,  and  the  payee's  obligation  to  re- 
fund is  also  perfect, — it  becomes  a  debt.  It  is  a  case  fully  within  the 
range  of  the  ex  aequo  et  bono  rule.  This  is  that  case.  It  falls  with- 
in none  of  the  exceptions  mentioned  by  Lord  Mansfield.  It  was 
not  paid  as  a  debt  due  in  honor  or  honesty,  as  in  case  of  a  debt  barred 
by  statute ;  it  is  not  paid  as  a  donation ;  it  was  not  paid  as  a  debt  con- 
tracted in  violation  of  public  law ;  for  example,  money  fairly  lost  at 
play.  In  all  such  cases  it  is  conscientious  for  the  defendant  to  keep 
it.    In  this  case  there  is  no  right  or  equity  or  conscience  upon  which 


IN    GENERAL.  417 

the  defendant  can  plant  himself.  Why,  then,  is  not  the  case  of  a  pay- 
ment by  mistake  of  the  law  within  the  principles  of  Moses  v.  Mac- 
ferlan  ? 

Right  here  the  argument  might  rest  on  principle.  Just  here  the 
onus  is  cast  upon  the  other  side,  to  show  how  and  why  this  case  is 
distinguishable  from  other  cases  falling  confessedly  within  the  prin- 
ciples upon  which  the  action  for  money  had  and  received  is  based. 
We  shall  see  upon  what  footing  the  distinction  is  placed  by  Lord 
Ellenborough.  It  is  that  of  policy.  The  doctrine  which  I  am  now 
repelling  never  w^as  defended  upon  principle ;  it  never  can  be.  No 
British  or  American  judge  ever  attempted  its  defense  on  principle. 
It  was  ruled  on  policy,  and  followed  upon  the  authority  of  a  few 
precedents.  A  policy  which,  it  must  be  conceded,  does  private 
wrong,  for  the  sake  of  an  alleged  public  good ;  or,  I  should  more 
appropriately  say,  rather  than  risk  a  doubtful  public  evil.  It  was, 
no  doubt,  this  view  of  the  subject  which  startled  the  calm  phila- 
sophical  equity  of  Marshall's  mind,  when  yielding,  in  Hunt  v.  Rouse- 
manier,  to  precedent,  he  still  gave  in  his  personal  protest  against  the 
doctrine.  For  what  he  said  in  that  case  can  be  viewed  in  no  other 
light  than  as  a  personal  protest.  It  is  wise,  it  is  necessary  for  courts 
to  yield  to  established  authority ;  but,  inasmuch  as  the  use  of  prece- 
dent is  to  illustrate  principle,  a  single  precedent  or  a  number  of  prece- 
dents should  not  control,  when  they  are  against  principle. 

We  guard  this  doctrine  by  saying,  that  the  action  is  not  main- 
tainable, w^here  money  is  paid  through  mere  ignorance  of  the  law,  or 
in  fulfillment  of  a  moral  obligation,  or  on  a  contract  against  public 
law,  or  on  any  account  which  will  make  it  consistent  with  equity 
and  good  conscience  for  the  defendant  to  retain  it.  Nor  does  the 
judgment  of  this  court  embrace  cases  of  concealment,  fraud,  or  mis- 
representation. They  depend  upon  principles  peculiar  to  themselves. 
And  farther,  it  is  scarcely  necessary  to  add  that  a  recovery  cannot 
be  had,  unless  it  is  proven  that  the  plaintiff  acted  upon  a  mistake  of 
the  law. 

2.  There  is  a  clear  and  practical  distinction  betw^een  ignorance 
and  mistake  of  the  law.^     Much  of  the  confusion  in  the  books,  and 

^Accord,  Lawrence  v.  Beaubien,  2  Bai.  (S.  C.)  623  (1831)  ;  Hutton  v.  Ed- 
gerton,  6  S.  C.  485  (1875).  Doubted  in  Robinson  v.  City  Council,  2  Rich.  L. 
(S.  C.)  317,  320  (1846),  and  in  Cuningham  v.  Cuningham,  20  S.  C.  317  (1883), 
where  the  court  says  (p.  332)  :  "In  this  state,  however,  the  distinction  has 
been  sharply  drawn  between  ignorance  of  law  and  mistake  of  law.  In  Law- 
rence V.  Beaubien,  2  Bail.  623,  and  in  Lowndes  v.  Chisholm,  2  McCord  Ch. 
455,  the  court  holding  that  in  cases  of  mistake,  the  court  could  give  relief,  and 
that  it  would  be  refused  in  cases  of  mere  ignorance.  The  principal  reason 
given  being  that  mistake  could  be  proved  and  that  ignorance  could  not.  As 
parties  can  now  testifj^  in  their  own  behalf,  it  may  be  doubtful  if  this  reason 
can  be  longer  sufficient  to  justify  the  distinction." 

Contra,  Jacobs  v.  Morange,  47  N.  Y.  57  (1871).  In  Champlin  v.  Laytin,  18 
Wend.  (N.  Y.)  407,  415  (1837),  Bronson,  J.,  says:  "Lawrence  v.  Beaubien, 
2  Bailey's  S.  Car.  R.  623,  is  the  only  case  I  have  met  with  where  a  distinction 

WoODKUFp's  Cases — 27 


4l8  MISTAKE   OF    LAW. 

in  the  minds  of  professional  men,  upon  this  subject,  has  grown  out 
of  a  confounding  of  the  two.  It  may  be  conceded,  that  at  first  view, 
the  distinction  is  not  apparent ;  but  it  is  insisted  that  upon  close  in- 
spection it  becomes  quite  obvious.  It  has  been  ridiculed  as  a  quibble, 
but  we  shall  see  that  it  has  been  taken  by  able  men,  and  acted  ui)on 
by  eminent  courts.  Ignorance  implies  passiveness ;  mistake  implies 
action.  Ignorance  does  not  pretend  to  knowledge,  but  mistake  as- 
sumes to  know.  Ignorance  may  be  the  result  of  laches,  which 
is  criminal ;  mistake  argues  diligence,  which  is  commendable.  Mere 
ignorance  is  no  mistake,  but  a  mistake  always  involves  ignorance, 
yet  not  that  alone.  The  difiference  may  be  well  illustrated  by  the 
case  made  in  this  record.  If  the  plaintiff,  the  administrator,  had 
refused  to  pay  the  distributive  share  in  the  estate  which  he  repre- 
sented, to  the  children  of  his  intestate's  deceased  sister,  upon  the 
ground  that  they  were  not  entitled  in  law,  that  would  have  been  a 
case  of  ignorance,  and  he  would  not  be  heard  for  a  moment  upon  a 
plea,  that  being  ignorant  of  the  law  he  is  not  liable  to  pay  interest 
on  their  money  in  his  hands.  But  the  case  is,  that  he  was  not  only 
ignorant  of  their  right  in  law,  but  believed  that  the  defendants  were 
entitled  to  their  exclusion,  and  acted  upon  that  belief,  by  paying  the 
money  to  them.  The  ignorance  in  this  case  of  their  right,  and  the 
belief  in  the  right  of  the  defendants,  and  action  on  that  belief,  consti- 
tute the  mistake. 

The  distinction  is  a  practical  one,  in  this,  that  mere  ignorance  of 
the  law  is  not  susceptible  of  proof.  Proof  cannot  reach  the  convic- 
tions of  the  mind,  undeveloped  in  action ;  whereas,  a  mistake  of  the 
law,  developed  in  overt  acts,  is  capable  of  proof,  like  other  facts. 

3.  The  usual  reply  to  all  this  is  the  time-honored  maxim  ignorantia 
juris  non  excusat.  We  do  not  make  void  this  maxim  in  any  fair 
construction  of  it.  It  is  an  indispensable  rule  of  legal  and  social 
policy:  it  is  that  without  which  crime  could  not  be  punished,  right 
asserted,  or  wrong  redressed.  What  if  its  application  does,  in  some 
cases,  work  injustice?  Its  overruling  necessity,  and  the  vast  pre- 
ponderance of  its  benefits  over  its  evils,  have  reconciled  the  civilized 
world  to  its  immovable  status  as  a  rule  of  action.  The  idea  of  ex- 
cuse implies  delinquency.  No  man  can  be  excused  upon  a  plea  of 
ignorance  of  the  law,  for  disobeying  its  injunctions  or  violating  its 
provisions  or  abiding  his  just  contracts.  He  is  presumed  to  know 
the  law,  and  if  he  does  not  know  it,  he  is  equally  presumed  to  be  de- 
was  attempted  between  ignorance  and  mistake  of  the  law,  and  holding  that  in 
the  latter  case,  though  not  in  the  former,  relief  might  be  granted.  I  think  the 
distinction  rests  on  no  solid  foundation.  Whether  money  paid  in  ignorance 
of  the  law  could  be  recovered  back  was  elaborately  discussed  by  the  counsel 
in  Haven  v.  Foster,  9  Pick.  112,  but  the  decision  turned  upon  another  point. 
The  court,  however,  assert  the  principle,  as  applicable  alike  to  civil  and  crimi- 
nal proceedings,  that  every  man  is  prestmicd  to  know  the  law  of  the  land. 
Wheaton  v.  Wheaton,  9  Conn.  R.  96,  and  Hunt  v.  Rousmanier,  i  Peters  i, 
both  affirm  the  doctrine  that  a  party  cannot  be  relieved  on  the  ground  of  a 
mistake  in  matter  of  law." 


IN    GENERAL.  4I9 

Hnqnent  .  I  remark,  to  avoid  misconstruction,  that  it  is  of  universal 
application  in  criminal  cases.  In  civil  matters,  it  ought  not  to  be 
used  to  effectuate  a  wrong.  That  is  to  say,  it  cannot  be  a  sufficient 
response  to  the  claim  of  an  injured  person,  that  he  has  been  injured 
by  his  own  mistake  of  the  law,  when  the  respondent,  against  con- 
science, is  the  holder  of  an  advantage  resulting  from  that  mistake. 
The  meaning,  then,  of  this  maxim  is  this :  no  man  can  shelter  him- 
self from  the  punishment  due  to  crime,  or  excuse  a  wrong  done  to, 
or  a  right  withheld  from  another,  under  a  plea  of  ignorance  of  the 
law.  The  maxim  contemplates  the  punishment  of  crime,  the  re- 
dress of  wrong,  and  the  protection  of  rights.  Is  it  not  unreasonable 
so  to  construe  it  as  to  apply  it  to  one  who  has  not  only  done  no 
wrong  and  withheld  no  right,  but  is  himself  the  injured  party,  as  in 
this  case  ?  The  plaintiff  has  violated  no  law,  withheld  no  right  from 
the  defendants,  and  in  no  particular  wronged  them ;  but  on  the  con- 
trary, he  has  been  injured  to  the  extent  of  the  money  which  they  un- 
righteously withhold  from  him.  In  this  view  of  it,  too,  the  public 
policy  of  the  maxim  is  sustained.  I  cannot  see  that  its  utility  is  les- 
sened by  this  limitation  of  its  application.  In  the  language  of  Sir 
W.  D.  Evans,  "The  effect  of  the  doctrine  is  carried  sufficiently  far 
for  the  purposes  of  public  utility,  by  holding  that  no  man  shall  ex- 
empt himself  from  a  duty,  or  shelter  himself  from  the  consequences 
of  infringing  a  prohibition  imposed  by  law,  or  acquire  an  advantage 
in  opposition  to  the  legal  rights  and  interests  of  another,  by  pre- 
tending error  or  ignorance  of  the  law,"  2  Poth.  Obi.  App.  297. 

The  distinction  between  ignorance  and  mistake  of  the  law  is  rec- 
ognized by  Lord  Roslyn  in  Fletcher  v,  Talbot,  5  Ves.  14 ;  by  Lord 
Manners,  in  Leonard  v.  Leonard,  2  Ball.  &  B.  180,  183;  by  the 
Court  of  Appeals  of  South  Carolina,  in  Lawrence  v.  Beaubien,  2 
Bai.  623  ;  and  in  the  Executors  of  Hopkins  v.  Mazyck  et  al,  i  Hill 
Ch.  251. 

In  England  the  authorities  are  pretty  nearly  in  cquilihrio,  yet  I 
must  think  that  the  preponderance,  taking  the  cases  at  law  and  in 
equity  together,  is  on  the  side  of  the  principle  which  I  am  laboring 
to  establish.  This  action  for  money  had  and  received  is  an  equitable 
remedy,  and  lies  generally  where  a  bill  will  lie ;  decisions,  therefore, 
in  chancery  which  recognize  the  principle  may  be  justly  held  to  sus- 
tain it.  The  first  case,  then,  in  order  of  time,  is  that  of  Lansdowne 
V.  Lansdowne,  reported  in  Moseley  364,  decided  by  Lord  Chancellor 
King.  That  case  was  this  :  The  second  of  four  brothers  died  seised 
of  land,  and  the  eldest  entered  upon  it.  But  the  youngest  also 
claimed  it.  They  agreed  to  leave  the  question  of  inheritance  to  one 
Hughes,  a  schoolmaster,  who  determined  against  the  eldest  brother, 
on  the  ground  that  lands  could  not  ascend.  Whereupon,  the  eldest 
agreed  to  divide  the  estate,  and  deeds  were  executed  accordingly. 
Lord  King  decreed  that  they  should  be  delivered  up  and  canceled, 
as  having  been  obtained  by  mistake.  There  is  no  doubt  whatever, 
but  the  mistake  was  one  of  law  as  to  the  legal  rights  of  the  elder 
brother.     It  is  a  case  in  point.     It  is  true  that  it  has  been  greatly 


420  MISTAKE   OF    LAW. 

criticized.  Moseley,  the  reporter,  has  been  charged  with  inaccuracy, 
and  was  very  much  in  disfavor  with  Lord  Mansfield.  Indeed,  it 
is  said  that  his  lordship  did,  on  one  occasion,  order  his  reports  not 
to  be  read  before  him.  Yet  there  stands  the  case,  and  if  supported 
by  nothing  else,  it  is  sustained  by  its  reasonableness.  Judge  Mar- 
shall, in  referring  to  it,  says  that  it  cannot  be  wholly  disregarded. 

The  case  of  Bize  v.  Dickason  was  decided  by  Lord  Mansfield  in 
the  Court  of  King's  Bench.  The  judgment  of  the  court  was  deliv- 
ered as  follows :  "The  rule  has  always  been  that  if  a  man  has  actu- 
ally paid  what  the  law  would  not  have  compelled  him  to  pay,  but 
what  in  equity  and  conscience  he  ought,  he  cannot  recover  it  back 
again  in  an  action  for  money  had  and  received.  So,  where  a  man 
has  paid  a  debt  which  would  otherwise  have  been  barred  by  the  stat- 
ute of  limitations,  or  a  debt  contracted  during  his  infancy,  which  in 
justice  he  ought  to  discharge,  though  the  law  would  not  have  com- 
pelled the  payment,  yet,  the  money  being  paid,  it  will  not  oblige  the 
payee  to  refund  it ;  but  where  money  is  paid  under  a  mistake,  which 
there  was  no  ground  to  claim  in  conscience,  the  party  may  recover 
it  back  again  in  this  kind  of  action,"  i  T.  R.  285. 

This  authority  is  incontrovertible,  and  has  not  been  controverted. 
The  case  made  shows  a  mistake  of  law.  The  mistake  spoken  of  by 
Lord  Mansfield  could  not  have  been  a  mistake  of  facts,  because  the 
case  exhibits  no  mistake  of  facts,  but  does  exhibit  a  mistake  of  the 
law. 

The  principle  was  sustained  by  a  decree  in  Bingham  v.  Bingham, 
I  Ves.  126.  There  the  bill  was  filed  on  the  ground  of  a  mistake  in 
law.  The  master  of  the  rolls  said,  "Though  no  fraud  appeared,  and 
the  defendant  apprehended  he  had  a  right,  yet  it  was  a  plain  mistake, 
such  as  the  court  was  warranted  to  relieve  against,  and  not  to  sufifer 
the  defendant  to  run  away  with  the  money  in  consideration  of  the 
sale  of  an  estate  to  which  he  had  no  right."  See  the  note  to  this 
case  in  Belt's  Supplement  79,  which  shows  the  mistake  to  have  been 
one  of  law.  Also  recognized  in  Turner  v.  Turner,  2  Ch.  R.  154;  in 
Leonard  v.  Leonard,  2  Ball  &  B.  171,  by  Lord  Manners;  by  Lord 
TiiuRLOw,  in  Jones  v.  Morgan,  i  Bro.  C.  C.  219,  and  by  Lord  El- 
DON,  in  Stockly  v.  Stockly,  i  Ves.  &  Bea.  23,  31,  and  in  Anchor  v. 
The  Bank  of  England,  Doug.  638. 

To  these  authorities  may  be  added  the  dicta  of  Lord  Ch.  J.  De 
Grey,  in  Farmer  v.  Arundel,  2  Black.  R.  824,  who  declared,  "That 
where  money  is  paid  by  one  man  to  another  on  a  mistake  either  of 
fact  or  of  law,  or  by  deceit,  this  action  will  certainly  lie."  Of  Lord 
Kenyon,  in  the  case  of  Chatfield  and  Paxton,  see  Chitty  on  Bills  102, 
and  of  Ciiambre,  J.,  in  Brisbane  v.  Dacres,  5  Taunt.  157.  This 
judge,  arguing  the  point  with  great  strength,  says,  "It  seems  to  me 
a  most  dangerous  doctrine,  that  a  man  getting  possession  of  money 
to  any  extent,  in  consequence  of  another  party's  ignorance  of  the 
law,  cannot  be  called  on  to  repay  it."  He  illustrates  by  putting  the 
very  case  made  in  principle  in  this  record.    "Suppose,"  says  he,  "an 


IN    GENERAL.  421 

administrator  pays  money  per  capita,  in  misapplication  of  the  effects 
of  the  intestate,  shall  it  be  said  that  he  cannot  recover  it  back?" 

Opposed  to  this  weight  of  authority  in  England,  stand  the  two 
cases  of  Bilbie  v.  Lumley,  2  East  469,  and  Brisbane  v.  Dacres,  5 
Taunt.  157, — in  the  latter  case  Ciiambre,  J.,  dissenting, — and  the 
obiter  opinion  of  Buller,  J. 

It  is  worthy  of  remark  that  Lord  Ellenbrougii,  who  presided 
in  Bilbie  v.  Lumley,  afterward  in  Perrott  v.  Perrott,  14  East  423, 
holds  language  irreconcilable  with  his  opinion  in  that  case.  In  the 
latter  case,  he  is  reported  to  say,  "Mrs.  Territ  either  mistook  the  con- 
tents of  her  will,  which  would  be  a  mistake  in  fact,  or  its  legal  opera- 
tion, which  would  be  a  mistake  in  law,  and  in  either  case  we  think 
the  mistake  annulled  the  cancellation."  Thus  it  is  manifest  that 
our  judgment  in  this  case  is  not  without  precedent  in  the  English 
books. 

The  authority  of  Bilbie  v.  Lumley  has  been  followed  in  this  coun- 
try by  Chancelor  Kent,  Shotwell  v.  Mundy,  i  Johns.  Ch.  512;  Lyon 
V.  Richmond,  2  Johns.  Ch.  51 ;  6  Johns.  Ch.  169,  170,  and  by  the  su- 
preme court  in  Hunt  v.  Rousmanier,  i  Pet.  i.  In  the  same  case,  how- 
ever, in  8  Wheat.  215,  Ch.  J.  Marshall  says :  "Although  we  do  not 
find  the  naked  principle,  that  relief  may  be  granted  on  account  of  ig- 
norance of  the  law,  asserted  in  the  books,  we  find  no  case  in  v/hich  it 
has  been  decided  that  a  plain  and  acknowledged  mistake  in  law  is  be- 
yond the  reach  of  equity."  The  case  in  i  Peters  i,  was  decided,  how- 
ever, upon  other  principles  than  that  one  now  under  discussion.  The 
same  may  be  said  of  the  cases  in  Johnson's  Chancery  Reports,  above 
referred  to.  Yet  it  may  not  be  denied  but  that  the  courts  there  rec- 
ognize the  rule  as  settled  in  Bilbie  v.  Lumley.  It  may  be  ques- 
tioned whether  the  recognition  of  that  authority  by  the  supreme 
court  is  worth  as  much  as  the  opinion  of  Ch.  J.  Marshall,  inti- 
mated so  plainly  in  the  above  extract,  as  to  the  rule  in  chancery. 
The  leaning  of  Mr.  J.  Story,  in  his  Commentaries  on  Equity,  is  the 
same  way ;  and  yet  he  says,  "It  has  been  laid  down  as  unquestionable 
doctrine,  that  if  a  party,  acting  in  ignorance  of  a  plain  and  settled 
principle  of  law,  is  induced  to  give  up  a  portion  of  his  indisputable 
property  to  another,  under  the  name  of  a  compromise,  a  court  of 
equity  will  relieve  him  from  the  effect  of  his  mistake,"  i  Story  Eq., 

Why  it  is  that  a  party  may  be  relieved  from  the  consequences  of 
a  mistake  of  the  law,  where  he  gives  up  his  property,  under  the 
name  of  a  comproniise,  and  not  under  other  circumstances,  it  is  diffi- 
cult to  see. 

Mistake  of  the  law  has  been  held  without  relief  in  Illinois  (3  Gil- 
man  162),  in  Tennessee  (8  Yerger  298),  in  New  Jersey  (i  Green's 
Ch.  Rep.  145),  and  in  Alabama  (9  Ala.  662),  and  it  may  be  else- 
where, beyond  my  time  for  ascertainment. 

The  contrary  was  expressly  ruled  by  the  Court  of  Appeals  in 
South  Carolina,  in  Lowndes  v.  Chisholm  (2  McCord's  Ch.  R.  455), 
in  1827.    This  was  followed  by  the  great  case  before  the  same  court 


422  MISTAKE   OF    LAW. 

in  1832,  of  Lawrence  v.  Beaubien.  I  call  it  great  because  of  the  af- 
fluence of  learning  displayed  in  the  argument  by  Messrs.  Holmes 
and  King  on  one  side,  and  Pettigru  and  Bailey  on  the  other,  and 
because  of  the  perspicuous  condensation  and  ability  of  the  opinion 
of  Mr.  J.  Johnson.  The  doctrine,  in  all  its  bearings,  is  there  dis- 
cussed with  extraordinary  power,  and  the  court  unanimously  de- 
cided that,  "A  mistake  of  law  is  a  ground  of  relief  from  the  obliga- 
tions of  a  contract  by  which  one  party  acquired  nothing  and  the 
other  neither  parted  with  any  right,  nor  suffered  any  loss,  and  which, 
ex  aequo  et  bono,  ought  not  to  be  binding;  and  that  it  makes  no  dif- 
ference that  the  parties  were  fully  and  correctly  informed  of  the 
facts,  and  the  mistake  as  to  the  law  was  reciprocal,  but  there  must 
be  evidence  of  a  palpable  mistake,  and  not  mere  ignorance  of  the 
law."  The  case  of  Lawrence  v.  Beaubien  was  reviewed  in  1833,  by 
the  court  of  appeals,  in  Executors  of  Hopkins  v.  Mazyck  and  others, 
and  its  doctrines  affirmed,  i  Hill's  Ch.  R.  242.  So  that  in  South 
Carolina  the  question  is  definitely  settled.  So,  also,  in  Massachu- 
setts, in  the  same  way.  See  May  v.  Coffin,  4  Mass.  342.  Warder  v. 
Tucker,  7  Mass.  452 ;  Freeman  v.  Boynton,  7  Mass.  488.  See,  also, 
Haven  v.  Foster,  9  Pick.  112. 

The  writers  on  the  civil  law  are  divided  as  to  the  question  whether 
money  paid  under  a  mistake  of  law  is  liable  to  repetition.  Vinnius 
and  D'Aguesseau  hold  the  affirmative ;  so  Sir  W.  D.  Evans.  The 
argument  of  the  great  French  chancellor,  D'Aguesseau,  is,  to  my 
mind,  unanswerable  (which  see  in  2  Evans'  Pothier,  Appendix  308). 
Pothier  and  Heineccius  maintain  the  negative ;  and  it  is  said  that  the 
text  of  the  Roman  law  is  with  them.  See  Rogers  v.  Atkinson,  i 
Kelly,  25,  26 ;  Collier  v.  Lanier,  i  Kelly  238. 

Let  the  judgment  of  the  court  below  be  reversed.^ 

*In  City  of  Covington  v.  Powell,  2  Met.  (Ky.)  226,  228  (1859),  the  court 
says :  "It  may  be  now  regarded  as  well  settled  in  this  state  that  when  money 
has  been  paid  through  a  clear  and  palpable  mistake  of  law  or  fact,  essentially 
affecting  the  rights  of  the  parties,  which,  in  law,  honor,  or  conscience,  was  not 
due  and  payable,  and  which  ought  not  to  be  retained  by  the  party  to  whom  it 
was  paid,  it  may  be  recovered  back.     (4  Dana  309;  3  B.  Mon.  513;   i   Met. 

153.)" 

In  Northrup's  Executors  v.  Graves,  19  Conn.  548,  554  (1849),  the  court 
says :  "We  mean  distinctly  to  assert,  that,  when  money  is  paid  by  one,  under 
a  mistake  of  his  rights  and  his  duty,  and  which  he  was  under  no  legal  or  moral 
obligation  to  pay,  and  which  the  recipient  has  no  right  in  good  conscience  to 
retain,  it  may  be  recovered  back,  in  an  action  of  indebitatus  assumpsit,  whether 
such  mistake  be  one  of  fact  or  of  law ;  and  this  we  insist,  may  be  done,  both 
upon  the  principle  of  Christian  morals  and  the  common  law.  And  such  only 
was  the  doctrine  of  the  charge  to  the  jury  in  the  present  case.  In  such  a  case 
as  we  have  stated,  there  can  be  no  reasonal)le  presumption  that  a  gratuity  is 
intended;  nor  is  the  maxim  Volenti  nan  fit  injuria  at  all  invaded.  The  mind 
no  more  assents  to  the  payment  under  a  mistake  of  the  law  than  if  made  under 
a  mistake  of  the  facts;  the  delusion  is  the  same  in  both  cases;  in  both  alike, 
the  mind  is  influenced  by  false  motives." 


VOID   ORDINANCES.  423 

ii.     Void  Ordinances. 

TOWN  COUNCIL  OF  CAHABA  v.  BURNETT. 

34  Ala.  400. — 1859. 

Action  to  recover  back  money  paid  for  a  license  under  an  ordi- 
nance which  was  thereafter  held  to  be  void. 

A.  J.  Walker,  C,  J. — It  is  the  law  of  this  state  that  where  money 
has  been  voiuntarily  paid,  through  mistake  or  ignorance  of  law,  with 
a  full  knowledge  of  the  facts,  and  without  fraud  or  imposition,  it 
cannot  be  reclaimed,  either  at  law  or  in  equity.  While  we  are  aware 
that  this  proposition  is  too  broad  to  harmonize  with  all  the  decisions, 
yet  it  is  supported  by  the  great  preponderance  of  adjudged  cases, 
both  in  England  and  America,  and  by  what  we  conceive  to  be  a 
sound  policy,  and  has  been  too  often  recognized  in  our  jurisprudence 
to  be  now  denied.  For  these  reasons,  and  because  the  subject  has 
been  recently  exam«ined  with  care  in  this  court,  we  decline  to  enter 
upon  a  discussion  of  the  subject.  Gwynn  &  Wife  v.  Hamilton,  29 
Ala.  233  ;  Rutherford  v.  Mclvor,  21  Ala.  756;  Knox  v.  Abercrombie, 
1 1  Ala.  997. 

That  the  payment  of  the  money  sought  to  be  regained  by  this  suit 
was  made  with  a  full  knowledge  of  all  the  facts,  in  the  absence  of 
fraud  or  imposition,  and  on  account  of  a  mistake  or  ignorance  of 
the  law,  is  clear,  and  is  not  controverted.  The  proposition  with 
which  this  opinion  commences  therefore  leaves  the  plaintiff  no 
ground  for  his  demand,  if  the  payment  was  vokmtary ;  and  the  fate 
of  the  case  hangs  upon  the  single  question  whether,  in  the  eye  of 
the  law,  the  payment  was  voluntary  or  compulsory. 

Without  being  thereto  directly  called  or  requested,  the  plaintiff 
went  to  the  proper  officer  of  the  town  council,  and  paid  to  him  the 
sum  required  by  the  ordinance  to  procure  license  to  retail  liquor  in 
the  town  for  the  remainder  of  the  year.  The  money  was  accepted, 
the  license  issued,  and  the  defendant  accordingly  retailed  liquor 
within  the  town.  The  ordinance  fixing  the  price  of  the  license  has 
since  been  declared  void.  Other  ordinances  prescribed  a  liability  to 
a  fine  of  $50  for  every  day  upon  which  any  person  might  retail  liquor 
without  license,  and  to  imprisonment  for  a  time  not  exceeding  three 
days,  if  the  fine  was  not  paid.  The  payment  of  the  price  of  the 
license  was  purely  voluntary,  unless  the  prospect  of  proceedings 
whereby  he  would  be  subjected  to  fine  and  imprisonment  (if  he 
failed  to  pay  it)  amounted  to  compulsion.  There  was  no  fraud,  no 
confidential  relation,  no  personal  exaction.  The  ordinances  do  not 
appear  to  have  been  adopted  otherwise  than  in  the  fullest  confidence 
of  their  validitv,  and  it  is  most  probable  that  the  plaintiff's  proposal 
to  pay  the  prescribed  sum  was  under  a  conviction  of  legal  duty.  It 
does  not  affirmatively  appear  that  the  plaintiff  was  influenced  by 
an  apprehension  of  proceedings  against  him ;  but,  if  the  presumption 


424  MISTAKE   OF    LAW. 

that  he  was  can  be  indulged,  it  does  not  afford  a  snfificient  predicate 
for  the  conclusion  that  he  acted  under  what  the  law  deems  compul- 
sion. That  money  has  been  paid  under  the  apprehension  of  judicial 
proceedings,  is  no  reason  why  there  should  be  a  reclamation. 

If  the  influence  of  the  mere  apprehension  of  judicial  proceedings 
is  legal  compulsion — if,  when  a  party,  having  the  alternative  to  pay 
or  submit  to  a  judicial  investigation,  elects  the  former,  he  can  be 
said  to  act  under  a  legal  duress,  then  the  distrust  of  the  adequacy 
of  the  courts  to  protect  and  maintain  the  right  is  justified,  and  it  is 
acknowledged  that  the  perils  of  justice  and  right  in  the  judicial 
tribunals  are  so  great  as  to  deprive  one  of  his  free  volition,  and  shield 
him  from  responsibility.  The  law  does  not  recognize  its  amenabil- 
ity to  such  a  reproach.  In  consequence  of  the  imperfection  incident 
to  all  that  is  human,  wrong  may  sometimes  prevail  in  the  purest  and 
wisest  judicial  tribunals ;  yet,  in  theory,  there  is  in  our  law  a  security 
for  every  right,  and  a  redress  for  every  wrong;  and  the  practical 
operation  of  the  law  corresponds,  in  the  main,  with  its  profession. 
No  one  can  be  heard  to  say  that  he  had  the  right  and  the  law  with 
him,  but  he  feared  his  adversary  would  carry  him  into  court,  and 
that  he  would  be  unlawfully  fined  and  imprisoned ;  and  that  being 
thereby  deprived  of  his  free  will,  he  yielded  to  the  wrong,  and  the 
courts  must  assist  him  to  a  reclamation. 

Again :  Another  reason  why  a  recovery  should  not  be  had  in  such 
a  case  is,  that  it  would  enable  one,  by  paying  a  claim  about  to  be  a€- 
serted  by  suit,  to  fix  his  own  time,  within  the  statute  of  limitations, 
for  the  litigation.  He  might  prefer  to  pay  off  the  claim,  and  take 
the  chance  of  his  adversary's  losing  his  testimony  within  the  period 
of  limitation  from  the  time  of  payment ;  thus  affording  him  an  op- 
portunity tX3  regain  the  sum  paid,  when  peradventure  it  might  be 
made  to  appear,  under  the  facts  then  extant,  that  the  payment  was 
not  required  by  the  law. 

Furthermore,  if  the  principles  contended  for  were  allowed,  it 
would  injuriously  affect  the  party  to  whom  the  payment  was  made. 
Regarding  the  money  as  his  own,  he  might  be  induced  to  adopt  a 
style  of  living,  or  to  dispense  benefactions  not  justified  by  his  for- 
tune. So  far  has  this  been  carried  in  Pennsylvania,  that  a  recovery 
of  taxes  illegally  assessed  was  denied,  because  the  borough  which 
had  received  the  payment  had  expended  it  in  improvements.  Bor- 
ough of  Allentown  v.  Saeger,  20  Penn.  State  R.  (9  Har.)  421. 
While  we  will  not  now  endorse  that  case  in  its  full  extent,  it  illus- 
trates the  view  which  the  courts  take  of  the  injustice  involved  in  such 
suits ;  and  it  is  the  more  appropriate  here,  because  it  was  proved  that 
most,  if  not  all  the  money,  had  been  expended  by  the  corporation ; 
and,  it  may  be,  in  improvements,  the  benefits  of  which  are  shared  by 
the  plaintiff  himself.     '''     '^'     * 

If  money  be  extorted  as  a  condition  upon  which  an  officer  will 
grant  a  license,  the  clearance  of  a  vessel,  or  the  like,  when  the  party  is 
legally  entitled  to  it,  the  payment  is  involuntary.  Morgan  v.  Parmer, 
2  B.  &  C.  733 ;  Ripley  v.  Gelston,  9  Johns  201,  and  Elliott  v.  Swart- 


VOID   ORDINANCES.  425 

wout,  10  Pet.  137.  The  plaintiff  cannot  invoke  that  principle,  because 
if  it  be  conceded  that  he  was  entitled  to  have  license  issued  from  the 
corporation,  the  money  was  not  extorted  from  him  as  the  only 
agency  by  which  he  could  obtain  the  license,  but  of  his  own  volition 
he  went  forward  and  proposed  the  payment.  He  who  received  the 
payment  was  merely  passive :  he  made  no  demand,  no  exaction.  The 
distinction  is  between  the  cases  where  a  party,  acting  from  his  own 
volition,  makes  a  payment,  upon  the  suggestion  of  his  own  mind 
that  it  is  legal,  to  an  officer  wlio  accepts  it  because  he  also  deems  it 
legal ;  and  where  a  party  demands  that  which  is  due  him  from  the 
officer,  and  the  latter  exacts  the  payment  as  the  only  condition  upon 
which  he  can  obtain  that  which  is  legally  due  from  that  officer.  In 
the  former  case,  the  payment  is  voluntary ;  in  the  latter,  involuntary. 
This  distinction  is  taken  and  sustained  in  several  of  the  cases  above 
cited.  Robinson  v.  City  of  Charleston,  2  Richardson  317;  Sprague 
v,  Birdsall,  2  Cow.  419;  Maxwell  v.  Griswold,  10  How.  256;  Elliott 
v.  Swartwout,  10  Peters  137;  Atlee  v.  Backhouse,  3  M,  &  W.  632; 
Amesbury  Woolen  &  Cotton  Man.  Co.  v.  Inhabitants  of  Amesbury, 
17  Mass.  461. 

Upon  the  last  point  above  stated  in  this  opinion  my  brethren  ex- 
press no  opinion.  They  think  there  is  no  necessity  for  deciding  that 
point,  and  that  the  decision  of  the  other  points  is  conclusive  as  to 
whether  the  payment  was  voluntary.  I  think  differently.  I  under- 
stand the  plaintiff  to  plant  himself  upon  the  proposition  that  the  pay- 
ment was  involuntary  for  two  reasons :  First,  because  of  the  liabil- 
ity to  fine  and  imprisonment  in  the  event  of  his  not  paying ;  and, 
second,  because  the  payment  was  made  to  procure  a  license  to  which 
he  was  entitled  without  such  payment.  In  my  opinion,  we  are  not 
authorized  to  affirm  that  there  was  error  in  the  overruling  of  the 
demurrer  to  evidence,  unless  we  can  decide  both  these  propositions 
against  the  plaintiff. 

The  court  is  unanimous  in  the  conclusion,  that,  upon  the  facts, 
the  plaintiff  had  no  right  of  action  whatever,  and  the  court  erred  in 
adjudging  the  demurrer  to  evidence  in  his  favor. ^ 

^Accord,  Cook  v.  Boston,  9  Allen  (Mass.)  393  (1864),  the  court  saying: 
"The  plaintiffs  here  voluntarily  sought  and  obtained  a  privilege,  and  enjoyed 
it  during  the  term  of  their  license.  They  elected  to  take  it,  knowing  that  the 
city  claimed  therefor  the  sum  they  paid,  as  the  just  and  proper  sum  to  be  paid 
therefor.  They  could  have  been  subjected  to  no  penalties  for  breach  of  the 
by-laws  of  the  city  in  the  use  of  their  wagons,  without  a  full  opportunity  to 
contest  their  legality.  Their  case  is  not  one  where  the  money  can  be  recov- 
ered back  on  the  ground  of  duress;"  and  adding  as  to  the  effect  of  protest 
that  "the  fact  that  the  money  was  paid  to  the  defendants  under  protest  does 
not  afifect  the  case,  where  the  payment  was  made  under  circumstances  like 
the  present."    Accord,  Camden  v.  Green,  54  N.  J.  L.  591  (1892). 

Upon  the  question  as  to  whether  a  license  fee  is  a  tax  the  court  in  Mays 
V.  Cincinnati,  i  Oh.  St.  268,  273  (1853),  says:  "Was  the  sum  demanded  by 
the  ordinance  for  the  license  to  trade  a  tax?  The  sum  required  is  limited 
only  by  the  discretion  of  the  council,  but  whatever  it  may  be,  it  goes  into  the 
city  treasuiy  and  constitutes  a  part  of  its  general  fund.  The  term  has  been 
correctly  defined  to  be  one  of  general  import,  including  almost  every  species 


426  MISTAKE    OF    LAW. 

MAYOR  AND  COUNCIL  OF  WILMINGTON  v.  WICKS. 

2  Marv.   (Del.)  297. — 1896. 

This  was  an  action  brought  to  recover  back  $10,  amount  paid  for 
license  under  what  was  termed  the  milk  ordinance,  which  provided : 

Section  3.  Each  and  every  person  or  persons  desiring  to  engage  in 
the  business  of  selling  milk  or  cream  in  the  City  of  Wilmington  shall 
apply  to  the  board  of  health  for  a  license. 

Section  5.  Provided  that  any  person  engaged  in  said  business  who 
should  not  take  out  such  a  license,  should,  upon  conviction  before 
the  municipal  court,  forfeit  and  pay  a  sum  not  exceeding  $10  for  the 
first  offense,  and  for  the  second  offense,  $25,  and  should  forfeit  his 
license. 

Section  ii.  Provided  that  the  milk  inspector  shall  prosecute  be- 
fore the  municipal  court  all  offenders  against  this  ordinance. 

At  the  trial  it  was  admitted  that  the  money  paid  has  passed  into 
the  city  treasury  and  is  now  in  possession  of  the  defendant ;  and  that 
this  ordinance,  subsequent  to  the  payment  by  the  plaintiff  of  the  fee 
for  his  license,  was  declared  void. 

The  plaintiff  testified  that  he  was  engaged  in  the  milk  business 
previous  to  the  i8th  day  of  April,  1895,  the  date  of  the  passage  of 
the  milk  ordinance;  that  during  the  month  of  May,  of  1895,  he  re- 
ceived notice  from  the  city  with  a  copy  of  the  ordinance,  and  a  few 
days  after  that  the  following  notice  appeared  in  the  newspapers : 

"All  persons  engaged  in  the  sale  of  milk  are  hereby  notified  to 
take  out  a  license,  as  provided  in  the  ordinance,  on  or  before  Satur- 
day next,  June  8.  After  that  time  any  person  engaged  in  the  sale 
of  milk  who  has  not  complied  with  the  law  will  be  prosecuted.  By 
order  of  the  board  of  health.  W.  C.  R.  Colquhoun, 

Secretary." 

He  said  that  in  preference  to  being  fined  and  having  to  pay  for  the 
license,  he  considered  it  best  to  pay  the  license,  and  went  to  the  of- 
fice of  the  board  of  health  and  paid  it  to  Mr.  Colquhoun.  "If  that  is 
the  law  I  propose  to  be  a  law-abiding  citizen,  and  if  this  is  not  the 
law  expect  to  have  my  money  back."  He  said,  "Well,  I  will  tell 
you  straight ;  I  will  be  damned  if  you  get  your  money  back."  He 
also  said,  "If  I  sold  a  half-pint  of  milk,  I  had  to  pay  that  license  or 
be  arrested."  The  plaintiff  thereupon  paid  the  fee  and  got  the  li- 
cense. 

of  imposition  on  persons  or  property  for  supplying  the  public  treasury,  as 
tolls,  tribute,  subsidy,  excise,  impost  or  customs.  In  a  more  limited  sense,  it 
is  the  sum  laid  for  the  same  purpose  upon  polls,  lands,  houses,  personal  prop- 
erty, professions  and  occupations.  Whether  regarded  in  the  larger  or  more 
limited  sense,  the  sum  here  exacted  is  clearly  included.  A  license  may  include 
a  tax  or  it  may  not.  If  the  exaction  goes  no  further  than  to  cover  the  neces- 
sary expenses  of  issiu"ng  it,  it  docs  not;  but  if  it  is  made  a  means  of  supply- 
ing money  for  the  public  treasury,  we  agree  with  tlio  court  in  State  v.  Rob- 
erts, 1 1  Gill  &  Johns.  506,  that  it  'is  a  tax,  is  too  palpable  for  discussion.' '' 


VOID    ORDIXAXCES.  42/ 

Lore,  C.  J.  (charging  the  jury). — This  is  an  action  brought  to 
recover  back  money  that  was  paid  by  Wicks,  the  plaintiff,  to  the 
City  of  Wilmington  for  a  license  to  sell  milk.  Wicks  claims  to  have 
paid  the  money  under  protest  and  involuntarily.  Upon  an  examina- 
tion of  the  case,  as  presented  to  the  court  and  jury,  the  court  think 
that  it  is  a  case  of  voluntary  payment,  and  not  of  involuntary  pay- 
ment in  contemplation  of  law.  We  therefore  direct  you  to  find  a  ver- 
dict in  favor  of  the  mayor  and  council  of  Wilmington,  defendant  be- 
low, appellant. 


r 


CITY  OF  HELENA  v.  DWYER  et  al. 

65  Ark.  155.— 1898. 


Action  by  Dwyer  Bros,  against  the  city  of  Helena.  From  a 
judgment  for  plaintiffs,  defendant  appeals.     Reversed. 

The  appellees,  Dwyer  Bros.,  brought  sviit  in  the  Phillips  circuit 
court  against  the  appellant  to  recover  certain  sums  of  money  which 
were  paid  by  them  at  various  times  from  January,  1893,  to  February 
I,  1895,  as  a  license  for  keeping  a  meat  market  in  the  city  of  Helena, 
amounting  in  the  aggregate  to  the  sum  of  $109.  The  complaint, 
among  other  things,  alleges  that  these  various  amounts  were  paid  to 
the  said  defendant  (appellant)  against  their  will,  illegally,  and  under 
protest  and  duress  of  law,  as  a  license  to  them  for  keeping  a  meat  mar- 
ket in  said  city ;  that  the  amounts  were  collected  at  different  times  by 
the  collector  of  said  city,  who  was  also  the  chief  of  police  thereof,  un- 
der an  ordinance  passed  by  said  city;  that  they  were  compelled  to 
pay  said  sums  of  money  in  installments,  from  time  to  time,  whenever 
called  upon  by  said  city  officers,  to  prevent  being  arrested  and  sub- 
jected to  the  payment  of  a  fine  upon  their  failure  to  pay  the  same, 
there  being  a  penalty  attached  to  said  ordinance,  which  subjected 
one  to  the  payment  of  a  fine,  and  arrest,  who  failed  to  pay  the 
same  w^hen  called  upon  by  the  proper  officers  of  said  city ;  that 
the  ordinance  was  unconstitutional  and  contrary  to  the  laws  of 
the  state ;  and  that  the  city  had  no  right  to  collect  the  same.  The 
appellant  answered,  denying  the  illegality  of  the  ordinance,  and 
charged  that  the  various  sums  paid  to  appellant  by  appellees  were 
paid  freely  and  voluntarily,  without  question,  fraud,  mistake,  threats 
of  arrest,  or  duress  of  any  kind  whatsoever,  and  were  also  paid 
prior  to  the  repeal  of  ordinance  referred  to.  The  section  of  the 
ordinance  prescribing  the  penalty  for  violation  of  this  ordinance  is  as 
follows :  "Be  it  ordained,  that  any  violation  of  this  ordinance  shall 
subject  the  offender  to  a  fine  of  not  more  than  $25  for  each  offense, 
to  be  adjudged  by  the  mayor  or  jury  trying  the  case."  This  is  the 
only  part  of  the  ordinance  necessary  to  set  out,  as  the  appellant 
does  not  contend  here  that  the  ordinance  was  valid,  but  only  con- 
tends that  the  payments  by  appellees  were  voluntary.     The  court 


428  MISTAKE    OF    LAW. 

found  the  facts  to  be  as  follows :  "That  while  the  ordinance  pro- 
vided a  failure  to  pay  the  license  rendered  the  offender  liable  to  a 
criminal  prosecution  and  a  penalty,  the  amounts  sued  for  were 
paid  to  enable  plaintiffs  to  carry  on  their  legitimate  business,  and 
not  to  be  adjudged  criminals;  that  the  amounts  were  paid  to  F.  D. 
Clancey  as  city  collector,  and  not  as  chief  of  police ;  that  he,  as 
such  collector,  had  no  authority  to  make  arrests ;  that  the  amounts 
were  paid  without  objection  or  protest,  but  for  the  reason  that 
their  failure  would  subject  them  to  arrest  and  prosecution  for  a 
failure  to  pay ;  that  appellees  were  never  threatened  with  arrest,  or 
arrested,  at  the  time  the  payments  were  made."  Appellant  asked 
the  court  to  declare  the  law  as  follows :  "The  payment  by  the 
plaintiffs  must  have  been  made  under  compulsion,  under  protest,  and 
to  prevent  the  immediate  arrest  and  detention  of  his  person,  and 
not  voluntarily  made," — which  the  court  refused,  but  declared  the 
law  as  follows :  "That  the  payments  made  by  plaintiffs  were  made 
imder  a  legal  duress  and  compulsion,  and,  in  law,  not  voluntarily ; 
that  an  ordinance  which  requires  the  payment  of  an  amount  of 
money  before  going  into  business,  when  paid  becomes  a  payment 
under  duress  of  law,  and  the  party  paying  is  entitled  to  recover 
the  same  back  by  suit  at  law." 

Wood,  J, — Judge  Dillon  says :  "The  coercion  or  duress  which 
will  render  a  payment  of  taxes  involuntary  must  in  general  consist 
of  some  actual  or  threatened  exercise  of  power  possessed,  or  be- 
lieved to  be  possessed,  by  the  party  exacting  or  receiving  the  pay- 
ment, over  the  person  or  property  of  another,  from  which  the  latter 
has  no  other  means,  or  reasonable  means,  of  immediate  relief, 
except  by  making  payment."  2  Dill.  Mun.  Corp.  §  943.  Again 
he  says :  "Money  voluntarily  paid  to  a  corporation  under  a  claim 
of  right,  without  fraud  or  imposition,  for  an  illegal  tax,  license,  or 
fine,  cannot,  without  statutory  aid — there  being  no  coercion,  no 
ignorance  or  mistake  of  facts,  but  only  ignorance  or  mistake  of  the 
law, — be  recovered  back  from  the  corporation,  either  at  law  or  in 
equity,  even  though  such  tax,  license  fee,  or  fine,  could  not  have  been 
legally  demanded  and  enforced."  Id.  §  944.  Judge  Cooley  enu- 
merates, as  one  of  the  conditions  upon  which  illegal  and  void  taxes 
paid  to  a  municipal  corporation  may  be  recovered,  the  following: 
"It  must  have  been  paid  under  compulsion,  or  the  legal  equivalent." 
Cooley,  Tax'n,  p.  805.  And  he  defines  a  "compulsory  payment"  as 
follows :  "A  payment  made  to  relieve  the  person  from  arrest,  *  *  * 
or  to  prevent  a  seizure,  when  it  is  threatened."  Id.  p.  84.  The 
principles  here  announced  were  approved  by  this  court  in  Town  of 
Magnolia  v.  Sharman,  46  Ark.  358.  It  will  be  seen,  by  applying 
these  principles  to  the  facts  as  found  by  the  court  in  the  present 
case,  that  the  court  erred  in  its  declaration  of  law,  and  in  refusing 
to  flcclarc  the  law  as  asked  by  the  appellant.  We  are  of  the  opinion 
that  the  payments  made  by  appellees,  under  the  facts  stated,  cannot 
be  construed  otherwise  than  as  voluntary  payments.     See  First  Nat. 


VOID   ORDINANCES.  429 

Bank  v.  Mayor,  etc.,  of  Americus,  68  Ga.  119,  and  numerous  cases 
cited  in  brief  of  appellant.     Reversed  and  remanded  for  new  trial. 


NEUMANN  V.  CITY  OF  LA  CROSSE. 
94  Wis.  103. — 1896. 

Cassoday^  C.  J. — It  appears  from  the  record  that  for  six  consecu- 
tive years  immediately  prior  to  the  commencement  of  this  action,  the 
plaintifif  was  engaged  in  the  business  of  selling  fresh  meats  in  the 
city ;  that  in  each  of  those  years  the  defendant,  loy  its  police  officers, 
exacted  of  the  plaintiff  a  license  fee  of  $12,  under  an  ordinance  of 
the  city  which,  on  the  trial,  was  conceded  to  be  entirely  void  and 
of  no  effect.  The  plaintiff  paid  each  of  such  exactions,  and  now 
brings  this  suit  to  recover  back  the  amount  so  paid,  with  interest, 
on  the  ground,  as  alleged,  that  he  paid  the  same  under  duress.  The 
defendant  denied  liability,  and  succeeded  in  the  justice's  court,  but 
on  the  appeal  and  retrial  in  the  circuit  court  the  plaintiff  recovered 
a  verdict  of  $86.36,  and  from  the  judgment  entered  thereon  the 
defendant  appealed  to  this  court,  prior  to  the  enactment  of  chapter 
215,  Laws  1895. 

We  are  constrained  to  hold  that  there  is  evidence  sufficient  to 
sustain  the  verdict,  to  the  effect  that  each  of  the  several  payments 
were  made  to  avoid  threatened  arrest  by  the  defendant's  policemen, 
and  hence  made  under  duress.  The  city  charter  authorized  the 
arrest  of  persons  for  violating  its  ordinances,  on  warrant  duly  issued. 
Laws  1887,  c.  162,  subc.  14,  §  i.  There  is  evidence  tending  to 
prove  that  the  plaintiff  did  not  know  but  that  each  such  police 
officer  had  such  warrant  at  the  time  of  making  such  threat,  and  that 
the  plaintiff  at  no  time  conceded  his  liability  to  pay  such  exaction, 
but  at  all  times  denied  the  same.  These  views  are  supported  by 
repeated  rulings  of  this  court.  Judd  v.  Town  of  Fox  Lake,  28  Wis. 
583 ;  Parcher  v.  Marathon  Co.,  52  Wis.  388.  9  N.  W,  23 ;  Ruggles 
V,  City  of  Fond  du  Lac,  53  Wis.  436,  10  N.  W.  565.  It  requires 
no  authorities  to  show  that  a  threatened  arrest  is  far  more  per- 
suasive than  a  threatened  levy.  The  verdict  is  conclusive  that  the 
jury  believed  the  evidence  on  the  part  of  the  plaintiff,  and,  if  that 
is  true,  then  the  payment  was  not  voluntary ;  and  hence  the  case 
is  distinguished  from  those  cited  by  counsel  for  the  defendant.  *  *  *i 

^Accord,  Buckley  v.  Mayor,  &c.,  of  New  York,  30  App.  Div.  (N.  Y.)  463 
(1898),  where  defendant's  building  inspector  threatened  the  arrest  of  plain- 
tiff unless  plaintiff  took  out  a  license  to  build  a  vault  which  the  law  permitted 
him  to  do  without  a  license. 

In  Harvey  &  Boyd  v.  Town  of  Olney,  42  111.  336,  339,  340  (1866),  the  court 
says :  "A  person  to  whom  a  town  offers  the  alternative  of  payina:  for  a  li- 
cense, or  undergoing  a  prosecution  before  the  police  magistrate,  which  would 


430  MISTAKE   OF    LAW. 

iii.    Change  of  Law. 

HARRIS  V.  JEX  ET  AL. 

55  N.  Y.  421.— 1874. 

This  was  an  action  to  foreclose  two  mortgages,  one  executed  in 
March,  1858,  the  other  in  March,  1861.  The  premises  were  con- 
veyed to  defendant  Jex  subject  to  the  mortgages.  He  alone  de- 
fended, setting  up  and  proving  a  tender  in  October,  1870,  of  the 
amount  of  the  mortgages  in  legal  tender  notes,  which  tender  was 
refused.  Further  facts  appear  in  the  opinion.  Judgment  was  given 
in  currency,  to  the  amount  of  the  mortgages  being  added  the  pre- 
mium on  gold.  Plaintiff  subsequently  remitted  the  premium,  and 
the  judgment  thus  modified,  was  affirmed  by  the  General  Term. 

Andrews,  J. — The  mortgages,  to  foreclose  which  this  action  was 
brought,  were  executed  prior  to  the  enactment  by  congress,  in  1862, 
of  the  act  known  as  the  legal  tender  act,  to  secure  the  payment  by 
the  mortgagor  to  the  mortgagee  of  the  sum  of  $7,000,  according  to 
the  condition  of  certain  bonds,  bearing  even  date  with  the  mort- 
gages. The  time  for  the  payment  of  the  mortgage  debt  was  sub- 
sequently extended,  by  an  agreement  between  the  parties,  to  the 
1st  day  of  March,  1870,  and  on  that  day  the  defendant  Jex,  who 
had  become  the  grantee  of  the  mortgaged  premises  by  a  convey- 
ance which  in  terms  was  made  subject  to  the  mortgages,  but  which 
contained  no  covenant  on  his  part  to  pay  them,  tendered  to  the  plain- 
tiff, to  whom  the  bonds  and  mortgages  had  been  assigned,  the 
amount  of  the  mortgage  debt  in  United  States  legal  tender  notes 
in  satisfaction  of  the  mortgages.  The  plaintiff  refused  to  accept 
them  on  the  ground  that  she  was  entitled  to  payment  in  gold  or  in 
its  equivalent  in  currency.  This  action  was  then  brought,  and  the 
only  question  presented  upon  the  record  is  whether  the  tender  dis- 
charged the  lien  of  the  mortgages.     *     *     * 

The  legal  tender  act  by  its  terms  made  the  notes  authorized  to 
be  issued  under  it  lawful  money  and  a  legal  tender  in  payment  of  all 
debts,  public  and  private,  within  the  United  States,  with  certain  ex- 
result  in  fine  and  imprisonment,  if  the  ordinance  under  which  the  city  acts 
should  he  held  valid,  may  certainly  pay  his  money  under  protest,  without  los- 
inpT  his  rij,dits,  and  cannot  he  required  to  incur  the  hazard  of  the  magistrate's 
decision  upon  the  validity  of  the  ordinance,  and  possihly  he  driven  to  a  writ 
of  habeas  corpus,  to  relieve  himself  from  imprisonment.  Such  payment  would 
not  he  voluntary.  *  *  *  jf  the  money  was  paid  hy  the  appellants  under 
threats  of  prosecution,  or  imder  a  belief,  induced  by  the  ofificcrs  of  the  town, 
that  only  by  payment  could  they  escape  prosecution,  and  was  paid  by  them 
imder  protest,  then  such  payment  can  in  no  just  sense  be  called  voluntary. 
County  of  La  Salle  v.  Simmons,  5  Gilm.  515.  Such  a  slate  of  facts  would 
make  this  case  very  unlike  the  case  of  Rohinson  v.  The  City  of  Charleston, 
2  Rich.  317,  cited  by  counsel  for  appellees,  and  the  case  of  Elston  v.  The  City 
of  Chicago,  40  111,  514,  in  both  of  which  the  payment  was  purely  voluntary." 


CHANGE   OF    LAW.  43 1 

captions  not  necessary  to  be  noticed.  The  Supreme  Court  of  the 
United  States,  in  Hepburn  v.  Grisvvold,  8  Wal.  605,  determined  that 
the  act,  so  far  as  it  related  to  debts  existing  at  the  time  of  its  pas- 
sage, was  in  violation  of  the  Constitution  of  the  United  States,  and 
was  void.  The  court  declared  that  contracts  for  the  payment  of 
money  made  before  that  time  were  in  legal  effect  contracts  for  pay- 
ment in  coin,  and  that  Congress  could  not  compel  a  creditor  to 
accept  legal  tender  notes  in  payment  of  a  debt  antecedently  created. 
The  tender  made  by  the  defendants  was  made  after  the  decision  in 
Hepburn  v.  Griswold  had  been  pronounced,  and  before  its  reversal 
by  the  case  of  Knox  v.  I.ee  (12  Wal.  457). 

It  is  insisted  on  the  part  of  the  defendant  that  notwithstanding 
the  fact  that  at  the  time  the  tender  was  made  the  Supreme  Court 
of  the  United  States,  the  ultimate  judicial  authority  on  all  questions 
arising  under  the  Constitution  and  laws  of  the  United  States,  had 
decided  that  the  legal  tender  act,  so  far  as  it  applied  to  debts  like 
that  of  the  plaintiff,  was  void,  and  that  he  was  entitled  to  demand 
payment  of  his  debt  in  coin,  yet  he  was  bound  to  know  the  law  to  be 
as  it  was  subsequently  declared,  and  that  a  refusal  to  accept  the  ten- 
der involved  the  loss  of  his  security.  I  think  the  law  did  not  impose 
upon  the  plaintiff  so  unreasonable  a  burden.  The  claim  is  sought 
to  be  justified  by  the  maxim,  ignorantia  juris  non  excusat,  the  rea- 
son of  which  is  stated  by  Lord  Ellenborough  in  Bilbie  v.  Lumley 
(2  East.  469),  to  be,  that  otherwise  there  is  no  saying  to  what 
extent  the  ignorance  might  not  be  carried,  and  that  it  would  be 
urged  in  almost  every  case.  The  reason  of  the  rule  has  no  application 
to  a  case  like  this.  The  plaintiff  had  a  right  to  repose  upon  the 
decision  of  the  highest  judicial  tribunal  in  the  land.  It  was,  as 
applied  to  the  relations  between  these  parties  and  to  this  case,  the 
law,  and  not  the  mere  evidence  of  the  law.  Respect  for  the  de- 
cisions of  courts  is  a  duty  inculcated  by  writers  upon  the  law,  and 
enforced  by  considerations  of  public  policy.  It  is  said  by  Kent 
(l  Com.  476):  "If  a  decision  has  been  made  upon  solemn  argu- 
ment and  mature  deliberation,  the  presumption  is  in  favor  of  its 
correctness,  and  the  community  have  a  right  to  regard  it  as  a  just 
declaration  or  exposition  of  the  law,  and  to  regulate  their  actions 
and  contracts  by  it."  The  transactions  of  life  would  be  involved 
in  great  and  distressing  perplexity  and  uncertainty,  if  the  maxim 
quoted  is  to  be  applied  and  extended  to  cases  like  this.  It  is  pro- 
vided in  this  State  by  statute  (2  R.  S.  624,  sec,  66)  that  every  act 
done  in  good  faith,  in  conformity  with  a  construction  by  the  Supreme 
Court  of  any  penal  or  other  statute,  after  such  decision  was  made 
and  before  reversal  by  the  Court  for  the  Correction  of  Errors, 
shall  be  so  far  valid  that  the  party  doing  said  act  shall  not  be  liable 
to  any  penalty  or  forfeiture  therefor. 

In  the  absence  of  a  statutory  provision  covering  this  case,  I  am 
of  opinion  that  the  same  equitable  principle  should  be  applied  as  is 
contained  in  the  statute  cited,  and  that  it  should  be  held  that  the 


.\ 


432  MISTAKE   OF    LAW. 

tender  by  the  defendant  did  not  discharge  the  hen  of  the  mortgage, 
it  being  insufficient  according  to  the  law  as  then  declared. 

If  the  tender  had  been  kept  good,  the  defendant  might  have  been 
discharged  from  the  payment  of  interest  and  costs. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed.^ 


CENTER  SCHOOL  TOWNSHIP  v.  STATE,  ex  rel.  BOARD 
OF  SCHOOL  COMMISSIONERS. 

150  Ind.  168. — 1898. 

The  State  of  Indiana,  on  the  relation  of  the  board  of  school  com- 
missioners of  the  city  of  Indianapolis,  instituted  this  action  against 
Center  school  township  of  Marion  county,  Ind.,  to  recover  money 
arising  out  of  the  surplus  dog-tax  fund  which  it  is  claimed  was 
due  to  said  board  of  school  commissioners  for  the  years  1893,  1894 
and  1895.     Demurrer.     Judgment  for  plaintiff.    Defendant  appeals. 

The  charge  made  by  the  complaint  against  the  appellant  is,  in 
substance,  and  to  the  effect,  that  on  the  first  Monday  in  March  in 
each  of  the  aforesaid  designated  years,  under  section  8654,  Burns' 
Rev.  St.  1894,  the  dog  fund  in  excess  of  $50  was,  by  the  provisions 
of  said  section,  required  by  the  proper  township  trustee  to  be  dis- 
tributed to  the  school  corporation  represented  by  the  relator  in  pro- 
portion to  its  enumeration  for  school  purposes ;  that  the  trustee 
failed  and  neglected  to  discharge  this  duty,  but,  on  the  contrary, 
appropriated  and  expended  all  of  said  surplus  fund  in  his  hands 
for  the  benefit  and  use  of  the  schools  of  Center  school  township ; 
and  that  no  part  thereof  was  paid  over  to  or  received  by  the  relator 
for  the  use  of  its  schools.  By  the  construction  placed  upon  section 
8654,  supra,  in  the  decisions  of  this  court  in  Taggart  v.  State,  142 
Ind.  668,  40  N.  E,  260,  and  42  N.  E.  352,  and  Gold  v.  State,  143 
Ind.  706,  40  N.  E,  263,  the  appellee's  right  to  its  proportionate  part 
of  the  surplus  dog  tax  in  the  hands  of  the  township  trustee  of 
Center  school  township  for  the  years  in  question  is  settled  in  its 
favor.  In  the  Taggart  Case,  decided  March  21,  1895,  this  court 
expressly  overruled  that  of  School  City  of  South  Bend  v.  Jaquith, 

^In  Troy,  Adm'r,  v.  Bland,  58  Ala.  197  (1877),  Bland  owed  plaintiff's  in- 
testate upon  debts  contracted  in  1858;  and  in  1870,  after  the  decision  in  Hep- 
burn V.  Griswold,  demand  was  made  for  payment.  Bland  tendered  legal 
tender  United  States  notes.  Gold  was  then  at  15  per  cent,  and  silver  at  10 
per  cent,  premium.  Plaintiff  offered  to  take  the  notes,  but  only  at  15  per 
cent,  discount.  Bland  refused  to  accede;  there  was  a  controversy  which  was 
finally  settled  by  payment  being  made  in  the  United  States  notes  at  10  per 
cent,  discount.  Thereafter  Hepburn  v.  Griswold  was  overruled,  and  Bland 
sued  to  recover  back  the  excess  paid  as  premium,  but  recovery  was  denied 
upon  the  ground  that  it  was  paid  in  compromise  of  a  disputed  claim. 


CHANGE   OF    LAW.  433 

90  Ind.  495,  decided  in  1883,  wherein,  under  the  provisions  of  sec- 
tion 5  of  an  act  of  the  legislature  of  188 1  (section  2651,  Rev.  St. 
1881),  which  were,  in  effect,  the  same  as  are  those  in  section  8654, 
supra,  it  was  held  that  no  part  of  the  surplus  dog  fund  belonged 
to  the  city  school  corporation,  but  that  such  fund  belonged  to,  and 
should  be  distributed  wholly  to,  the  school  township.  Counsel  for 
appellant  do  not  insist  but  what  the  construction  given  to  the  statute 
in  the  Taggart  appeal  was  correct,  and  virtually  concede  that  the 
decision  in  the  case  of  School  City  of  South  Bend  v.  Jaquith,  supra, 
was  properly  overruled.  But  their  principal  contention  in  support 
of  this  appeal  seemingly  is  that  our  decision  overruling  the  case 
must  not  be  held  to  be  retrospective,  and  thereby  invade  what  they 
term  the  vested  rights  of  the  appellant  to  the  money  in  controversy, 
Jordan,  J. — *  *  *  '■'  Shall  we  confine  the  change  made  in 
the  interpretation  of  the  law  by  the  Taggart  Case  so  as  to  operate 
prospectively  only,  and  thereby  not  affect  appellant  in  its  claim  to 
the  entire  surplus  dog  fund  distributed  to  and  received  by  it  prior 
to  March  21,  1895,  or  shall  the  new  construction  of  the  statute  be 
held  to  be  binding  on  it  as  to  the  money  in  dispute?  The  decisions 
of  a  court  of  last  resort,  the  authorities  assert,  are  not  the  law,  but 
are  only  the  evidence  or  exposition  of  what  the  court  construes  the 
law  to  be ;  and  in  overruling  a  former  decision  by  a  subsequent  one 
the  court  does  not  declare  the  one  overruled  to  be  bad  law,  but  that 
it  never  was  the  law,  and  the  court  was  therefore  simply  mistaken  in 
regard  to  the  law  in  its  former  decision.  The  first  decision,  upon 
the  point  on  which  it  is  overruled,  is  wholly  obliterated,  and  the 
law  as  therein  construed  or  declared  must  be  considered  as  though 
it  never  existed,  and  that  the  law  always  has  been  as  expounded  by 
the  last  decision.  Haskett  v.  Maxey,  134  Ind.  182,  33  N.  E.  358; 
Ram,  Judgm.  47.  This  rule,  however,  is  subject  to  the  well-settled 
doctrine  that  courts  will  not  so  apply  a  change  made  in  the  con- 
struction of  the  law  as  it  was  held  to  be  in  the  overruled  case,  as 
to  invade  what  is  considered  vested  rights ;  or,  in  other  words,  while, 
as  a  general  rule,  the  law  as  expounded  by  the  last  decision  operates 
both  prospectively  and  retrospectively,  still  courts  are  required  to 
and  do  confine  it  in  its  operation  so  as  not  to  impair  vested  rights, 
such  as  property  rights,  or  those  resting  on  contracts,  express  or 
implied.  Haskett  v.  Maxey,  supra;  Stephenson  v.  Boody,  139  Ind. 
60,  38  N.  E.  331.  The  true  rule  afiirmed  by  the  authorities,  and  the 
prevailing  one,  is  to  give  a  change  of  judicial  construction  in  regard 
to  a  statute  the  same  effect  in  its  operation,  so  as  not  to  disturb 
vested  rights,  as  would  be  given  to  a  legislative  amendment ;  that 
is,  apply  the  change  in  the  interpretation  of  the  law  so  as  to 
operate  prospectively,  and  not  retroactively.  Douglass  v.  Pike  Co., 
loi  U.  S.  677.  But  the  rights  which  the  law  protects  must  be  real. 
They  must  be  rights  of  property,  or  those  founded  on  contract, 
express  or  implied.  Suth.  St.  Const.,  §  164,  states  the  rule  in  this 
respect  as  follows :  "When  a  right  has  arisen  on  a  contract  or  a 
Woodruff's  Cases — 28 


434  MISTAKE   OF    LAW. 

transaction  in  the  nature  of  a  contract  authorized  by  a  statute,  and 
has  been  so  far  perfected  that  nothing  remains  to  be  done  by  the 
party  asserting  such  right,  the  repeal  of  the  statute  will  not  affect 
it  or  an  action  for  its  enforcement.  It  has  become  a  vested  right, 
which  stands  independently  of  the  statute.  *  "*•'  *  This  is  a 
principle  of  general  jurisprudence;  but  a  right,  to  be  within  its  pro- 
tection must  be  a  vested  right.  It  must  be  something  more  than 
a  mere  expectation  based  upon  anticipated  continuance  of  the  exist- 
ing law.  It  must  have  become  a  title,  legal  or  equitable,  to  the 
present  or  future  enjoyment  of  property,  or  to  the  present  or  future 
enforcement  of  a  demand,  or  a  legal  exemption  from  a  demand  made 
by  another." 

But  can  the  appellant  in  any  sense,  under  the  facts  and  circum- 
stances in  this  case,  be  said  to  have  acquired  a  vested  right  to  the 
surplus  dog  fund  involved  in  this  action,  so  as  to  bring  it  within 
the  protection  of  the  rule  to  which  we  have  referred,  and  thereby 
be  entitled  to  deny  appellee's  right  of  recovery?  It  is  evident  that 
the  money  received  by  it  under  the  construction  placed  on  the  law 
by  a  former  decision  of  this  court  was  not  embraced  in  any  contract 
or  property  rights  in  the  legal  acceptation  of  those  terms.  The 
fund  out  of  which  the  money  in  dispute  was  distributed  to  appellant 
was  collected  and  accrued  under  legislative  authority,  and,  in  a  legal 
sense,  was  the  property  of  the  state ;  and  the  surplus  certainly  was 
subject  to  be  disposed  of  or  applied  by  legislative  authority  to  any 
public  purpose  not  inconsistent  with  the  constitution.  Appellant  is 
a  public  corporation ;  the  creature  of  the  legislature ;  or,  in  other 
words,  but  an  instrument  in  the  hands  of  the  latter  to  carry  out  its 
will  in  regard  to  the  common-school  system  of  the  state,  and  there- 
fore at  all  times,  in  respect  to  the  control  or  disposition  of  its  funds, 
it  is  subject  to  the  will  of  the  law-making  power,  provided,  of 
course,  that  such  will  must  not  be  so  exercised  as  to  disturb  existing 
contract  rights.  The  rule  is  well  settled  that  the  control  of  the 
state  over  a  public  corporation  is  subject  to  no  such  limitations  as 
operate  in  favor  of  corporations  of  a  private  character ;  consequently 
the  law  makes  a  distinction  between  the  rights  of  the  individual  or 
])rivate  corporations  and  those  of  a  public  corporation. 

It  must  follow,  as  a  necessary  result  of  these  principles,  which 
are  controlling  over  appellant,  that  it,  under  the  circumstances,  is 
not  in  a  position  to  raise  any  question  in  respect  to  vested  rights 
which  it  claims  were  invaded  by  the  change  in  judicial  construc- 
tion of  the  statute  providing  for  the  disposition  of  the  surplus  dog 
fund.  Taggart  v.  State,  supra;  Endlich  Interp.  St.,  §  284 ;  Wade, 
Retro.  Laws,  §§  21,  22;  People  v.  Morris.  13  Wend.  325;  Beach, 
Pub.  Corp.,  §v<  720-722.  Appellant,  therefore,  having  received  the 
money  through  a  judicial  misinterpretation  of  the  law,  cannot  be 
successfully  heard  to  deny  appellee's  right  thereto,  which  existed 
in  the  first  instance,  under  the  proper  construction  of  the  statute 
whereby  the  legislature  had  declared  its  will  in  respect  to  the  dispo- 


.  / 

PAYMENT    RY    PUBLIC   OFFICERS.  435 

sition  of  the  surplus  dog  fund.     The  complaint  is  sufficient,  and 
the  judgment  is  therefore  affirmed. 


iv.  Payment  by  Public  Officers. 

FREDERICK  v.  DOUGLAS  COUNTY  et  al. 

96  Wis.  411. — 1897, 

This  action  was  commenced  November  i6,  1895,  by  the  plaintifif, 
for  himself  and  all  other  taxpayers  of  said  county,  to  restrain  the 
county  and  its  officers  from  paying  to  the  defendant  H.  H.  Grace 
or  issuing  warrants  to  him  for  the  payment  of  anything  whatever 
for  or  on  account  of  his  services  as  attorney,  rendered  or  to  be  ren- 
dered to  the  county,  and  to  compel  the  said  Grace  to  pay  back  to 
the  county  $2,012,  which  had  previously  been  paid  to  him. 

WiNSLOW,  J. — *  *  *  *  ^11  ^|-,g  members  of  this  court  agree 
that  Mr.  Grace  cannot  be  compelled  to  pay  back  the  money  he  has 
actually  received  for  the  legal  services  rendered  by  him  to  the 
county  prior  to  the  commencement  of  this  action,  but  the  remaining 
members  of  the  court  do  not  agree  with  the  Chief  Justice  as  to  the 
legal  grounds  upon  which  such  decision  should  be  based,  and  I  have 
been  requested  by  my  colleagues  to  present,  as  best  I  may,  their 
views  upon  that  subject. 

In  our  judgment,  it  would  be  dangerous  to  hold  that  because  Mr. 
Grace  had  actually  rendered  services,  and  the  county  had  volun- 
tarily paid  for  the  same  with  knowledge  of  the  facts,  such  money 
so  paid  could  not  be  recovered.  There  are  many  cases  which  hold 
that,  as  between  man  and  man,  money  paid  voluntarily,  with  knowl- 
edge of  all  the  facts,  and  without  fraud  or  duress,  cannot  be  re- 
covered merely  on  account  of  ignorance  or  mistake  of  the  law.  A 
number  of  these  cases  are  cited  in  the  opinion  of  the  Chief  Justice, 
and  it  is  not  my  province  to  combat  this  principle.  This  is  simply 
the  doctrine  of  voluntary  payment.  It  is  frequently  applied  to  the 
payment  of  illegal  taxes.  It  is  founded  upon  the  general  principle 
that  a  man  may  do  what  he  will  with  his  own.  He  may  give  it 
away,  or  buy  his  peace ;  and,  if  he  does  so  with  knowledge  of  the 
facts,  he  is  generally  remediless.  But  public  officials  do  not  stand 
upon  the  same  basis.  They  are  not  dealing  with  their  own.  They 
are  trustees  for  the  taxpayers,  and,  in  dealing  with  public  funds, 
they  are  dealing  with  trust  funds.  All  who  deal  with  them  know 
also  that  the  public  officials  are  acting  in  this  trust  capacity.  To  hold 
that,  when  public  officers  have  paid  out  money  in  pursuance  of  an  il- 
legal and  unwarranted  contract,  such  moneys  cannot  be  recovered 
in  a  proper  action  brought  upon  behalf  of  the  public,  merely  because 
the  payment  has  been  voluntarily  made  for  services  actually  rendered, 


436  MISTAKE   OF    LAW. 

would  be  to  introduce  a  vicious  principle  into  municipal  law,  and  a 
principle  which  would  necessarily  sweep  away  many  of  the  safe- 
guards now  surrounding  the  administration  of  public  affairs.  Were 
this,  in  fact,  the  law,  it  can  readily  be  seen  that  public  officials  could 
at  all  times,  with  a  little  ingenuity,  subvert  and  nullify  that  wholesome 
principle  of  law  which  prohibits  their  spending  the  public  funds  for 
illegal  purposes.  All  that  would  be  necessary  to  be  done  would  be  to 
make  the  contract,  have  the  labor  performed,  pay  out  the  money,  and 
the  public  would  be  remediless.  We  cannot  approve  of  such  a  doc- 
trine. The  rules  of  law  concerning  ratification  and  estoppel,  as  ap- 
plied to  the  illegal  or  unauthorized  acts  of  public  officials,  are  simple 
and  well  understood.  A  municipal  corporation  may  undoubtedly 
ratify  an  unauthorized  contract  made  by  its  agents,  which  is  within 
the  general  scope  of  its  corporate  powers ;  but  it  is  equally  certain 
that  it  cannot  ratify  such  unauthorized  acts  of  its  agents  as  are  be- 
yond its  scope,  or  such  contracts  as  it  had  no  power  to  make  original- 
ly. Trester  v.  City  of  Sheboygan,  87  Wis.  496,  58  N.  W.  747 ;  Koch 
V.  City  of  Milwaukee,  89  Wis.  220,  62  N.  W.  918.  Ratification  and 
estoppel  are  of  very  much  the  same  nature,  and  the  principles  which 
apply  to  ratification  substantially  apply  also  to  estoppel.  As  said 
by  Mr.  Dillon  in  the  passage  quoted  by  the  Chief  Justice :  "The  gen- 
eral doctrine  is  undoubted  that  there  is  ordinarily  no  estoppel  in 
respect  to  acts  which  are  in  violation  of  the  constitution  or  of  an 
act  of  the  legislature,  or  which  are  obviously,  and  in  the  strict  and 
proper  sense  of  the  term,  ultra  vires.  *  *  *  -^Ye  mean  by  it,  as 
here  used,  the  want  of  legislative  power,  under  any  circumstances 
or  conditions,  to  do  the  particular  act  in  question."  This  passage, 
we  believe,  expresses  the  law  with  clearness.  This  court  decides  in 
the  present  case  that  "the  county  board  had  no  authority  to  employ 
Mr.  Grace  to  take  charge  of  and  conduct  the  tax  litigation  men- 
tioned." They  had  no  authority  under  any  circumstances  then  ex- 
isting, because  they  had  a  district  attorney  qualified  and  acting. 
Therefore  the  employment  of  Mr.  Grace  was  to  the  full  extent  an 
act  beyond  their  power,  and  hence  incapable  of  ratification.  It  is 
not  difficult  to  find  cases  holding  to  the  full  extent  the  doctrine  that 
where  public  officers  have  made  an  illegal  appropriation  of  public 
money,  and  the  money  has  been  paid,  it  may  be  recovered  in  a 
proper  action  brought  either  by  the  corporation  or  by  taxpayers  on 
behalf  of  the  public.  Such  actions  have  generally  been  actions  in 
equity,  brought  to  restrain  the  further  misappropriation  of  funds, 
and,  as  an  incident  of  full  relief,  to  recover  back  moneys  already 
paid ;  and  it  may  be  stated  as  a  uniform  rule  that  in  such  cases 
such  moneys  may  be  recovered  back,  especially  where  there  is  any 
ground  to  charge  fraud,  corruption,  or  concealment  in  the  trans- 
action. A  case  in  point  is  that  of  Russell  v.  Tate,  52  Ark.  541,  13 
S.  W.  130,  in  which  an  illegal  appropriation  of  town  funds  was 
made  to  aid  in  completing  a  county  court  house.  A  part  of  the 
ai)propriation  was  paid  over  immediately.     As  said  in  the  opinion : 


PAYMENT    BY    PUBLIC    OFFICERS,  437 

"The  appropriaton  was  made,  and  the  warrant  drawn,  and  the 
money  paid  by  the  treasurer,  before  an  attorney  could  have  com- 
prehended the  situation,  and  written  the  caption  of  a  complaint." 
And  the  court  held  that  the  amount  already  paid  could  be  recovered, 
as  well  as  that  there  should  be  an  injunction  against  any  further  pay- 
ment, thus  doing  complete  justice  in  one  action.  Other  cases  in 
which  voluntary  payments  by  municipal  officials  have  been  recovered 
back  may  be  cited,  as  follows :  Demarest  v.  Inhabitants,  40  N.  J. 
Law,  604;  Weeks  v.  Texarkana,  50  Ark.  81,  6  S.  W.  504:  Tacoma 
v.  Lillis,  4  Wash.  797,  31  Pac.  321.  The  principle  is  also  recog- 
nized in  Willard  v.  Comstock,  58  Wis.  565,  17  N.  W.  401.  But 
while  we  believe  it  to  be  salutary  and  a  correct  principle  of  law  to 
hold  that  moneys  paid  out  by  municipal  officials  in  violation  of  law 
may  be  recovered  from  the  recipient  in  an  action  seasonably  brought, 
especially  where  the  transaction  is  marked  by  haste,  fraud,  collu- 
sion, or  concealment,  we  believe  there  are  cases  in  which  the  cir- 
cumstances are  such  that  a  court  of  equity  ought  not  to  decree  the 
return  of  money  merely  because  the  appropriation  thereof  was  un- 
authorized, and  such  a  case  we  believe  to  be  before  us  now. 

The  evidence  and  the  findings  show  that  Mr.  Grace's  employment 
began  in  January,  1895,  and  it  was  a  matter  of  public  notoriety,  and 
the  plaintiff  himself  and  presumably  all  taxpayers  who  kept  track 
of  the  public  proceedings  knew  that  he  was  employed  as  early  as 
the  spring  of  1895 ;  that  he  performed  large  and  valuable  services, 
for  which  he  was  from  time  to  time  paid ;  and  that  not  only  he,  but 
the  county  board,  acted  in  entire  good  faith  in  the  matter.  There 
was  no  haste  and  no  evidence  of  collusion  or  concealment.  Mr. 
Grace's  services  ran  through  a  number  of  months,  and  he  undoubt- 
edly has  fully  earned  all  the  money  which  has  been  paid  him.  Dur- 
ing all  this  time  the  plaintiff  and  his  fellow  taxpayers  remained 
silent,  and  allowed  the  services  to  be  rendered  and  the  money  to  be 
paid.  They  took  no  action  until  the  latter  part  of  November,  1895. 
Then  they  came  into  a  court  of  equity,  and  asked  for  the  stoppage 
of  all  payments  in  the  future,  and  to  this  they  are  undoubtedly  en- 
titled. But  he  who  comes  into  a  court  of  equity  must  do  equity. 
Could  it,  under  any  view  of  the  circumstances,  be  said  to  be  equit- 
able to  compel  Mr.  Grace  to  pay  back  the  money  which  he  received 
for  long  and  valuable  labors,  rendered  honestly  and  in  good  faith, 
the  benefit  of  which  the  corporation  has  received,  and  concerning 
which  the  taxpayers  of  Superior  were,  or  ought  to  have  been,  fully 
informed  during  their  entire  progress?  Were  a  court  of  equity 
to  make  tliis  judgment  under  the  circumstnces,  we  should  regard 
it  as  having  become  an  engine  of  oppression,  rather  than  an  instru- 
ment of  justice.  We  do  not  rest  this  decision  entirely  upon  the 
ground  that  the  remedy  has  been  lost  by  laches,  or  that  the  county 
has  become  estopped,  but  upon  the  ground  that,  under  all  the  cir- 
cumstances, the  plaintiff  having  invoked  the  relief  of  a  court  of 


438  MISTAKE   OF    LAW. 

equity,  that  court,  in  granting  the  relief,  will  not  take  away  the  fruit 
of  honest  labor.    Mayor,  etc.,  v.  Huff,  60  Ga.  221.* 


V.  Payment  to  an  Officer  of  the  Court. 

GILLIG  V.  GRANT,  as  receiver. 

23  App.  Div.  (N.  Y.)  596. — 1897. 

Appeal  by  the  defendant,  Hugh  J.  Grant,  as  receiver  of  the  St. 
Nicholas  Bank  of  New  York,  from  a  judgment  of  the  Supreme 
Court  in  favor  of  plaintiff,  entered  in  the  office  of  the  clerk  of  the 
county  of  New  York  on  the  12th  day  of  October,  1897,  upon  the 
verdict  of  a  jury  rendered  by  direction  of  the  court,  and  also  from 
an  order  entered  in  said  clerk's  office  on  the  14th  day  of  October, 
1897,  denying  the  defendant's  motion  for  a  new  trial  made  upon 
the  minutes. 

^  In  United  States  v.  Dempsey,  104  Fed.  197  (1900),  where  a  paymaster  of 
the  United  States  army,  by  mistake  of  law  overpaid  an  army  officer,  the  court 
said  (p.  199)  :  "The  next  question  is,  the  money  having  been  paid  over  to 
and  received  by  the  defendant  by  reason  of  an  erroneous  construction  of  the 
law,  can  the  same  be  recovered  from  the  defendant  by  the  government  in 
this  suit?  The  paymaster  who  paid  the  defendant  the  above  sum  of  money 
could  go  no  further  in  this  matter  than  he  was  authorized  by  law.  The  law 
limited  his  powers.  He  could  bind  the  government  only  to  the  extent  au- 
thorized by  law.  The  government  was  not  bound  when  he  exceeded  the 
authority  given  him  by  the  federal  statutes.  The  money  paid  to  the  defend- 
ant was  the  money  of  the  government,  and,  as  stated  above,  the  government 
having  provided  the  defendant  with  suitable  quarters  free  of  charge,  the  pay- 
master was  not  authorized  to  pay  him  this  money.  That  belonged  to  the 
government.  Under  such  circumstances  the  following  decisions  maintain 
the  rule  that  the  government  may  sue  for  and  can  recover  back  this  sum  of 
money  so  paid:  McElrath  v.  United  States,  102  U.  S.  441,  26  L.  Ed.  189;  Wis- 
consin Central  R.  R.  Co.  v.  United  States,  164  U.  S.  190,  17  Sup.  Ct.  45,  41 
L.  Ed.  399." 

Contra,  in  Wayne  County  v.  Randall,  43  Mich.  137,  139  (1880),  the  court 
says :  "The  claim  in  question  was  presented  to  the  board  of  auditors,  and  they 
fully  informed  of  all  the  facts  relating  thereto  and  also  that  doubts  existed 
as  to  the  liability  of  the  county  therefor.  It  further  appears  that  the  board 
took  advice  regarding  the  liability  of  the  county,  allowed  the  claim,  and  that 
it  was  paid.  Under  such  a  state  of  facts  we  are  of  opinion  that  the  sum  so 
paid  cannot  be  recovered  back.  The  mistake  was  one  of  law  and  not  of  fact. 
The  same  reasons  which  would  prev-cnt  an  individual  from  recovering  back 
money  paid  under  such  a  state  of  facts  should  apply  here  also.  Our  views 
upon  this  point  are  more  fully  set  forth  in  Detroit  v.  Advertiser  &c.  Co.,  ante 
p.  116,  decided  at  the  present  term,  and  need  not  here  be  repented."  And 
in  Village  of  Morgan  Park  v.  Knopf,  199  111.  444.  446  (1902),  the  court  says: 
"There  was  no  fratid  or  mistake  of  fact,  and  if  there  was  any  mistake  it  was 
one  of  law,  and  the  money  having  been  voluntarily  paid  under  such  circum- 
stances, no  action  would  lie  to  recover  it  back.  This  rule,  which  is  well 
settled  as  between  individuals,  has  been  extended  to  municipal  corporations 
under  similar  circumstances.     People  v.  Foster,  133  111.  496." 


PAYMENT    TO    COURT    OFFICER.  439 

This  action  was  brought  to  recover  money  received  by  the  de- 
fendant as  the  proceeds  of  an  execution  sale  against  tlie  George  C. 
Treadwell  Company.  In  January,  1894,  the  plaintiff  brought  an 
action  against  the  company,  in  which  a  warrant  of  attachment  was 
issued  to  the  sheriff  of  Albany  county.  On  January  9,  1894,  a  levy 
was  made  under  this  warrant  and  property  set  apart  for  the  satisfac- 
tion of  the  plaintiff's  claim.  The  following  day  a  warrant  of  attach- 
ment against  the  company  was  issued  in  an  action  brought  by  the 
defendant,  and  on  January  11,  1894,  a  levy  was  made  under  this 
warrant,  and  property  set  apart  for  the  satisfaction  of  the  defend- 
ant's claim.  The  property  attached  under  the  plaintiff's  warrant 
was  sold  under  an  execution  subsequently  issued  upon  a  judgment 
obtained  by  him  in  the  action,  but  proved  insufficient  to  satisfy  such 
judgment.  Plaintiff  thereupon  moved  in  Albany  county  to  compel 
the  sheriff  to  sell  the  property  held  under  the  defendant's  warrant 
and  apply  the  proceeds  upon  the  plaintiff's  judgment.  This  motion 
was  denied  at  Special  Term  on  February  12,  1895,  and  the  order 
w^as  affirmed  by  the  General  Term  of  the  third  department  in  the 
following  March.  In  January,  1896,  the  Court  of  Appeals  reversed 
these  orders  and  granted  the  motion.  In  the  meantime,  in  July, 
1895,  the  sheriff,  not  being  stayed  from  so  doing,  sold  the  property 
held  under  the  defendant's  warrant  and  paid  over  the  proceeds  to 
him.  After  the  decision  of  the  Court  of  Appeals,  a  motion  was 
made  by  the  plaintiff  to  compel  the  defendant  to  pay  him  the 
amount  received  from  the  sheriff.  The  order  entered  upon  this 
motion  on  May  26,  1897,  withheld  decision  as  to  the  plaintiff's  right 
to  compel  payment,  but  granted  him  leave  to  bring  an  action  to 
recover  the  amount.  In  pursuance  of  this  order  the  present  action 
was  begun. 

Barrett,  J. — There  are  two  grounds  upon  which  the  judgment  in 
this  action  should  be  sustained :  First,  a  party's  right  to  follow  prop- 
erty upon  which  he  has  a  lien  into  the  hands  of  one  who  has  received 
the  property  with  knowledge  of  that  lien,  and  who  is  not  a  bona 
Ude  purchaser  for  value ;  second,  the  well-recognized  exception  to 
the  general  rule  that  money  paid  under  a  mistake  of  law  cannot  be 
recovered  back,  namely,  where  the  money  is  so  paid  to  an  officer 
of  the  court. 

{After  sustaining  the  judgment  upon  the  first  ground,  the  court 
proceeds  to  the  second  ground.] 

The  rule  that  money  paid  under  a  mistake  of  law  cannot  ordin- 
arily be  recovered  back  is  entirely  inapplicable  to  the  present  state 
of  facts.  This  action  is  not  against  the  sheriff,  nor  is  it  brought 
in  the  right  of  the  sheriff.  It  is  brought  in  the  plaintiff's  own  right 
to  recover  money,  to  which  he  is  entitled,  from  one  who  has  pos- 
session of  it  without  right.  But  even  if  the  money  had  been  paid 
by  the  sheriff  to  Gillig,  and  the  latter,  under  a  misconception  of  his 
legal  rights  under  the  statute,  had  paid  it  over  to  the  receiver,  an 
action  to  recover  it  back  would  lie,  for  the  general  rule  is  subject 
to  the  limitation  that  money  paid  under  a  mistake  of  law  to  an  officer' 


440  MISTAKE    OF    LAW. 

of  the  court  can  be  recovered.  In  Ex  parte  James  (9  L.  R.  [Ch. 
App.  Cas.]  609)  Lord  Justice  James  applied  this  Hmitation  to  a 
trustee  in  bankruptcy  with  the  observation  that  the  general  rule 
"must  not  be  pressed  too  far."  There  a  creditor  had  received 
money  to  which  he  was  actually  entitled  under  an  execution  sale 
against  the  bankrupt.  He  paid  this  money  over  to  the  trustee  under 
the  mistaken  supposition  that  the  latter  was  entitled  thereto  as  a 
matter  of  law.  "I  am  of  opinion,"  said  Lord  Justice  James,  "that  a 
trustee  in  bankruptcy  is  an  officer  of  the  court.  He  has  in- 
quisitorial powers  given  him  by  the  court,  and  the  court  regards 
him  as  its  officer,  and  he  is  to  hold  money  in  his  hands  upon  trust 
for  its  equitable  distribution  among  the  creditors.  The  court  then, 
finding  that  he  has  in  his  hands  money  which  in  equity  belongs  to 
some  one  else,  ought  to  set  an  example  to  the  world  by  paying  it 
to  the  person  really  entitled  to  it.  In  my  opinion  the  Court  of 
Bankruptcy  ought  to  be  as  honest  as  other  people."  This  decision 
was  followed  in  Ex  parte  Simmonds  (L.  R.  [16  O.  B.]  308),  where 
Lord  EsHER  observed  that,  although  the  court  will  in  general  per- 
mit an  individual  litigant  to  do  a  "shabby  thing,"  namely,  to  keep 
the  money  thus  acquired,  it  will  not  allow  its  own  officer  to  do  this. 
"It  will,"  said  this  learned  judge,  "direct  its  officer  to  do  that  which 
any  high-minded  man  would  do,  viz.,  not  to  take  advantage  of  the 
mistake  of  law.  This  rule  is  not  confined  to  the  Court  of  Bank- 
ruptcy. If  money  had  by  mistake  of  law  come  into  the  hands  of 
an  officer  of  a  court  of  common  law  the  court  would  order  him  to 
repay  it  as  soon  as  the  mistake  was  discovered."  The  doctrine  of 
these  cases  commends  itself  to  both  reason  and  justice. 

In  quoting  with  approval  the  expressions  of  these  learned  English 
judges,  we  mean  no  reflection,  even  indirectly,  upon  the  receiver 
or  his  learned  counsel.  Indeed,  the  diligence  and  tenacity  of  these 
gentleman,  in  the  pursuit  of  property  for  the  benefit  of  the  trust 
estate  represented  by  them,  are  commendable.  It  would,  however, 
be  a  reproach  upon  the  administration  of  justice  should  the  court, 
when  the  question  is  squarely  before  it,  hesitate  to  admonish  its 
officer  to  desist  from  further  efforts  to  augment  his  trust  estate  at 
the  expense  of  one  who  is  clearly  entitled  to  the  money  which  that 
officer  holds. 

We  think,  therefore,  that  the  direction  below  was  right  and  that 
the  judgment  appealed  from  should  be  affirmed,  with  costs. 

Williams  and  Patterson,  JJ.,  concurred ;  Van  Brunt,  P.  J., 
and  Rumsey,  J.,  concurred  in  result  upon  second  ground  stated 
in  opinion. 

Judgment  affirmed  with  costs. ^ 

Mn  Wilde  v.  Baker  and  others,  14  Allen  349  (1867),  Baker,  who  was  ap- 
pointed by  the  court  to  be  receiver  of  an  insolvent  insurance  company,  levied 
an  assessment  upon  the  mcml)ers,  which  plaintiff  paid  to  him.  The  assess- 
ment was  afterward  held  to  be  invalid  by  Traders'  Ins.  Co.  v.  Stone,  9  Allen 
483.     The  opinion  of  the  court,  in  full,  in  the  present  case  is:    "Chapman, 


FOREIGN    LAW.  44 

vi.  Foreign  Law. 
HAVEN  V.  FOSTER. 
Q  Pick.  (Mass.)  112. — 1829. 

Assumpsit  for  money  had  and  received  and  for  money  paid. 

Andrew  Craigie,  of  Cambridge,  Mass.,  died  there  intestate,  being 
seised  of  real  estate  in  Massachusetts  and  in  New  York.  His  heirs  at 
law  were  his  nephews,  Andrew  Foster,  John  Foster,  and  Thomas 
Foster — all  sons  of  the  intestate's  deceased  sister  Mary ;  and  also  a 
niece,  Elizabeth  Haven  (wife  of  the  plaintiff),  who  was  the  daughter 
of  intestate's  deceased  sister  Elizabeth.  By  the  statute  of  New 
York  the  land  there  descended  one  moiety  to  the  neice,  and  the 
other  moiety  to  the  nephews.  The  neice  (with  her  husband)  and 
the  nephews  sold  land  in  New  York,  and  the  purchaser  gave  to 
the  husband  and  the  three  nephews  each  a  bond  for  one  quarter 
of  the  purchase  money,  which  bonds  were  later  paid.  The  husband 
on  discovering  that  half  of  the  land  descended  to  his  wife,  brought 
this  action  against  one  of  the  nephews  to  recover  one-third  of  the 
fourth  of  the  purchase  money. 

Morton,  J. —  [After  stating  some  of  the  facts,]  By  the  statute 
of  distributions  of  this  State  these  heirs,  standing  in  the  same  de- 
gree of  relationship  to  the  intestate,  inherited  his  estate  in  equal 
proportions.  But  by  the  statute  of  New  York,  which  carries  the 
doctrine  of  representation  farther  than  the  law  of  this  State,  or 
indeed  than  the  civil  or  common  law,  these  heirs  inherited  per 
stirpes  and  not  per  capita.  So  that  the  estate  in  New  York  de- 
scended, one-half  to  the  wife  of  the  plaintiff,  and  the  other  half  to 
the  defendant  and  his  two  brothers ;  being  one-sixth  instead  of 
one-quarter  to  each.  Of  the  provisions  and  even  existence  of 
this  statute,  all  the  heirs  were  entirely  ignorant  during  the  whole 
of  the  transactions  stated  in  the  case.  The  plaintiff,  having  dis- 
covered the  mistake,  now  seeks  by  this  action  to  reclaim  of  the 
defendant  one-third  of  the  amount  received  by  him  on  account  of 
the  sale  of  the  New  York  lands,  with  interest  from  the  time  of 
its  receipt.  And  the  question  now  submitted  to  our  decision  is, 
whether  he  is  entitled  to  a  repetition  of  the  whole  or  any  part  of 
this  amount.     *     *     *     * 

The  principal  objection  to  the  plaintiff's  recovery,  and  the  one 
most  relied  upon  by  the  defendant's  counsel,  is,  that  the  payment 

J. — The  money  sought  to  be  recovered  in  this  action  was  paid  to  Baker  as  re- 
ceiver of  an  insolvent  insurance  company,  appointed  by  this  court.  He  and 
his  sureties  are  liable,  unless  the  money  was  received  under  such  circum- 
stances that  he  is  liable  to  repay  it  to  those  from  whom  he  received  it.  But 
the  facts  show  that  the  payments  were  so  far  voluntary  that  they  cannot  be 
recovered  back.    Benson  v.  Monroe,  7  Cush.  125.    Judgment  for  the  plaintifif." 


y 


442  MISTAKE   OF   LAW. 

to  the  defendant  was  made  through  misapprehension  of  the  law, 
and  therefore  that  the  money  cannot  be  reclaimed. 

It  is  alleged,  that  to  allow  the  plaintiff  to  recover  in  the  present 
action,  would  be  to  disregard  the  common  presumption  of  a  knowl- 
edge of  the  law,  and  to  violate  the  wholesome  and  necessary  maxim 
I gnorantia  juris  quod  quisque  tenetur  scire,  ncminem  excusat.  This 
objection  has  been  strongly  urged  by  the  defendant's  counsel,  and 
learnedly  and  elaborately  discussed  by  the  counsel  on  both  sides. 
It  is  believed  that  all  of  the  authorities  applicable  on  the  point,  from 
the  civil  as  well  as  the  common  law,  have  been  brought  before 
the  court. 

Whether  money  paid  through  ignorance  of  the  law  can  be  re- 
covered back,  is  a  question  much  vexed  and  involved  in  no  incon- 
siderable perplexity.  We  do  not  court  the  investigation  of  it,  and 
before  attempting  its  solution,  it  may  be  well  to  ascertain,  whether 
it  is  necessary  to  the  decision  of  the  case  before  us. 

That  a  mistake  in  fact  is  a  ground  of  repetition,  is  too  clear  and 
too  well  settled  to  require  argument  or  authority  in  its  support. 

The  misapprehension  or  ignorance  of  the  parties  to  this  suit  re- 
lated to  a  statute  of  the  State  of  New  York.  Is  this,  in  the  present 
question,  to  be  considered  fact  or  law? 

The  existence  of  any  foreign  law  must  be  proved  by  evidence 
showing  what  it  is.  And  there  is  no  legal  presumption  that  the 
law  of  a  foreign  state  is  the  same  as  it  is  here.  2  Stark.  Ev.  (Met- 
calf's  ed.)  568;  Male  v.  Roberts,  3  Esp.  163.  If  a  foreign  law  is 
unwritten,  it  may  be  proved  by  parol  evidence ;  but  if  writtten,  it 
must  be  proved  by  documentary  evidence.'  Kenny  v.  Clarkson,  i 
Johns.  385  ;  Frith  v.  Sprague,  14  Mass.  455  ;  Consequa  v.  Willings, 
I  Pet.  C.  C.  229.  The  laws  of  other  States  in  the  union  are  in  these 
respects  foreign  laws.     Raynham  v.  Canton,  3  Pick.  293. 

The  courts  of  this  State  are  not  presumed  to  know  the  laws  of 
other  States  or  foreign  nations,  nor  can  they  take  judicial  cogni- 
zance of  them  till  they  are  legally  proved  before  them.  But  when 
established  by  legal  proof,  they  are  to  be  construed  by  the  same 
rules  and  to  have  the  same  effect  upon  all  subjects  coming  within 
their  operation,  as  the  laws  of  this  State. 

That  the  lex  loci  rci  sitae  must  govern  the  descent  of  real  estate, 
is  a  principle  of  our  law  with  which  every  one  is  presumed  to  be 
acquainted.  But  what  the  lex  loci  is,  the  court  can  only  learn  from 
proof  adduced  before  them.  The  parties  knew,  in  fact,  that  the 
intestate  died  seised  of  estate  situated  in  the  State  of  New  York. 
They  must  be  presumed  to  know  that  the  distribution  of  that  estate 
must  be  governed  by  the  laws  of  New  York.  But  are  they  bound, 
on  their  peril,  to  know  what  the  provisions  of  these  laws  are?  If 
the  judicial  tribinials  arc  not  presumed  to  know,  why  should  private 
citizens  be?  If  they  arc  to  be  made  known  to  the  court  by  proof, 
like  other  facts,  why  should  not  ignorance  of  them  by  private  indi- 
viduals have  the  same  effect  upon  their  acts  as  ignorance  of  other 


FOREIGiV    LAW.  443 

facts?  Juris  ignorantia  est,  cum  jus  nostrum  ignoramus,  and  does 
not  extend  to  foreign  laws  or  the  statutes  of  other  States. 

We  are  of  opinion,  that  in  relation  to  the  question  now  before  us, 
the  statute  of  New  York  is  to  be  considered  as  a  fact  the  ignorance 
of  which  may  be  ground  of  repetition.  And  whether  ignorantia 
legis  furnishes  a  similar  ground  of  repetition,  either  by  the  civil 
law,  the  law  of  England,  or  the  law  of  this  Commonwealth,  it  is 
not  necessary  for  us  to  determine.  The  examination,  comparison, 
and  reconciliation  of  all  the  conflicting  dicta  and  authorities  on  this 
much  discussed  question  is  a  labor  which  we  have  neither  leisure 
nor  inclination  to  undertake. 

In  the  view  which  we  have  taken  of  this  case,  it  appears  that  the 
defendant  received  a  part  of  the  consideration  for  which  the  plain- 
tiff's estate  was  sold ;  that  it  was  received  by  mistake ;  and  that  this 
mistake  was  in  a  matter  of  fact.  He,  therefore,  has  in  his  hands 
money  which  ex  aequo  et  bono  he  is  bound  to  repay,  and  there  is  no 
principle  of  law  which  interposes  to  prevent  the  recovery  of  it 
out  of  his  hands. 

The  action  for  money  had  and  received,  which  for  its  equitable 
properties  is  ever  viewed  with  favor,  is  the  proper  remedy  for  its 
repetition.  The  mode  in  which  the  payment  was  originally  secured 
by  bond  and  mortgage  forms  no  objection  to  the  recovery,  inasmuch 
as  the  money  was  in  fact  paid  before  the  action  was  c"ommenced.   *   * 

Upon  a  view  of  the  whole  case,  it  is  the  opinion  of  the  court,  that 
the  plaintiff  recover  one-third  of  the  whole  amount  received  by  the 
defendant  on  account  of  the  sale  of  lands  in  New  York,  with  interest 
from  the  service  of  the  writ.^ 


Johnson,  J.,  in  BANK  OF  CHILLICOTHE  (Ohio)  v.  DODGE. 

8  Barb.    (N.  Y.)   233,  237. — 1850. 

The  paper  negotiated  by  the  defendant  to  the  plaintiffs,  upon 
which  the  money  was  advanced,  was  a  time  draft  issued  by  the 
Farmers'  Bank  of  Seneca  County  [N.  Y.],  an  incorporated  banking 
institution,  payable  three  months  after  date,  to  the  order  of  the  de- 
fendant. The  defendant's  counsel,  upon  the  trial  insisted,  and  the 
judge  held,  that  this  paper  was  issued  by  the  bank  without  authority 
and  was  void,  and  that  no  recovery  could  be  had  upon  it.  This  posi- 
tion was  clearly  right.  The  statute  forbids  such  paper  to  be  issued, 
and  it  was  utterly  fraudulent  and  void.  No  person,  by  any  act,  could 
give  validity  or  vitality  to  it  as  commercial  paper,  anywhere.  And 
so  are  all  the  cases.  Leavitt,  Receiver,  v.  Blatchford  and  Others, 
5  Barb.  9.     Affirmed  in  Court  of  Appeals,  3  Comst.   19.     So  far 

^  Accord,  that  mistake  of  law  of  another  state  is  mistake  of  fact,  Rosen- 
baum  V.  United  States  Credit  System  Co.,  64  N.  J.  L.  34  (1899). 


444  MISTAKE   OF    LAW. 

the  judge  ruled  as  requested  by  defendant's  counsel.  But  the 
justice  went  farther,  and  instructed  the  jury  that  as  this  paper  was 
made  void  by  an  act  of  our  state  legislature,  of  which  the  plaintiffs, 
being  non-residents  of  the  state,  were  not  bound  to  take  nor  sup- 
posed '^o  have  notice,  and  as  they  had  in  good  faith  advanced  to  the 
defendant  the  money  upon  it,  they  were  entitled  to  recover  the 
money  thus  advanced.  To  this  part  of  the  charge  the  defendant's 
counsel  excepted.  In  this  I  think  the  learned  justice  was  entirely 
correct.  The  defendant  was  a  resident  of  this  state,  and  chargeable 
with  a  knowledge  of  all  legislative  enactments  here.  The  law  im- 
putes to  him  knowledge  that  this  paper,  negotiated  by  him,  was 
utterly  void  and  worthless — no  better  than  mere  blank  paper.  The 
money  was  then  advanced  and  paid  to  him  without  consideration. 
It  was  advanced  in  Ohio,  and  the  plaintiffs  are  a  corporate  body 
of  that  state.  They  are  not  presumed  to  have  notice  of  our  statutes. 
The  statutes  of  our  state  are  only  brought  to  the  notice  of  courts 
and  citizens  of  that  state  by  proof.  Had  it  been  shown  that  the 
plaintiffs,  or  the  officers  of  the  bank,  had  actual  knowledge  of  the  stat- 
ute in  question,  they  might,  notwithstanding  their  non-residence,  be 
placed  upon  the  footing  of  persons  mutually  dealing  in  illegal 
transactions.  But  there  is  no  such  question  here.  It  is  not  pre- 
tended that  officers  of  the  bank  had  any  knowledge  in  fact  of  our 
statute.  The  cause  was  evidently  tried  upon  the  assumption  that 
the  money  was  advanced  upon  the  draft,  in  good  faith,  by  the 
plaintiffs,  supposing  it  to  be  good.  No  question  of  that  kind  was 
raised  at  the  trial. 

The  plaintiffs  then  stand  in  precisely  the  same  situation  as  though 
the  money  had  been  paid  by  them  under  a  mistake  as  to  material 
facts.  Ignorance  of  the  law  of  a  foreign  government  is  ignorance 
of  fact — and  in  this  respect  the  statute  laws  of  other  states  of  this 
union  are  foreign  laws.  Haven  v.  Foster,  9  Pick.  112.  Norton  v. 
Harden,  3  Shepley  45.  And  this  proceeds  upon  the  principle  that 
foreign  laws  are  matters  to  be  proved,  like  other  facts,  before  even 
courts  can  notice  them.  It  is  an  elementary  principle  that  money 
paid  under  a  mistake  of  material  facts,  where  the  party  paying  de- 
rives no  benefit  from  it,  may  be  recovered  back. 

New  trial  denied. 


(^i 


CONSTRAINT    BY    FAULT    OF   DEFENDANT.  (445,^ 

2.    CONSTRAINT, 
a.    Constraint  by  Fault  of  Defendant. 
i.  In   General. 

HOGG  V.  LONGSTRETH. 

97  Pa.  St.  255.— i88i. 

This  was  an  action  of  assumpsit  by  William  Hogg,  Jr.,  against 
John  Longstreth,s^o  recover  the  amount  of  certain  taxes  paid  by  the 
plaintiff  on  premises  of  which  the  plaintiff  was  mortgagee  and  the 
defendant  was  terre-tenant.\ 

Mr.  Justice  Trunkey.— Henry  Myers  gave  to  the  plaintiff  three 
mortgages,  dated  May  31,  1872,  each  being  on  a  separate  lot  in  Phila- 
delphia. Subsequently  Myers  conveyed  the  lots  to  Kaign,  Kaign  con- 
veyed to  Taylor,  and  Taylor,  by  deed  dated  February  6,  1874,  con- 
veyed to  Longstreth,  the  defendant ;  each  conveyance  being  subject 
to  said  mortgages.  In  1879  ^  scire  facias  was  issued  on  each  mort- 
gage, against  Myers  with  notice  to  Longstreth,  as  terre-tenant,  and 
the  judgments  thereon  aggregated  nearly  $6,000.  Hogg,  the  mort- 
gagee, purchased  the  lots  at  sheriff's  sale,  on  his  judgments.  During 
the  five  years  that  Longstreth  owned  the  lots,  he  neglected  to  pay  the 
taxes.  Judgment  had  been  obtained  for  the  taxes  of  the  first  three 
years.  After  his  purchase  at  sheriff's  sale,  the  mortgagee  paid  that 
judgment,  and  also  the  taxes  for  the  remaining  two  years,  the  pro- 
ceeds of  sale  having  been  insufficient  to  cover  them,  and  he  claims 
to  recover  the  amount  of  said  judgment  and  taxes  in  this  suit. 

There  is  no  evidence  that  the  defendant  agreed  to  pay  the  mort- 
gage debt.  Hence  he  was  not  personally  liable  therefor,  and  was  un- 
der no  obligation  to  the  plaintiff,  arising  out  of  a  contract.  As 
against  all  the  world,  except  the  mortgagee,  he  held  the  lots  by  abso- 
lute title,  and  he  could  divest  the  mortgagee's  estate  by  paying  the 
debt.  The  mortgagee  was  liable  to  be  taxed  for  money  at  interest 
secured  by  the  mortgages  ;  the  defendant,  holding  title  under  the 
mortgagor,  was  liable  for  the  taxes  on  the  land.  Being  in  possession, 
he  was  not  only  legally  liable,  but  had  no  equity  for  the  attempt  to 
impose  payment  of  the  taxes  on  another  person.  By  force  of  law 
the  taxes  were  a  personal  charge  against  the  defendant,  as  well  as  a 
lien  on  the  real  estate.  This  lien  was  not  only  entitled  to  preference 
over  other  liens,  but  would  not  be  discharged  by  a  judicial  sale  on  any 
other  lien,  unless  the  proceeds  were  sufificient  to  pay  it.  Therefore, 
the  plaintiff  had  no  alternative  but  to  pay  the  taxes  owing  by  the  de- 
fendant, or  lose  the  land.  Had  the  taxes  been  prosecuted  to  collec- 
tion before  the  foreclosure  of  the  mortgage,  the  plaintiff  must  have 
paid  them,  or  have  lost  his  security.     A  mortgagee  in  possession, 


446  CONSTRAINT    BY    FAULT    OF   DEFENDANT, 

holding  a  living  pledge,  may  pay  the  taxes  on  the  land,  and  treat 
the  sum  so  paid  as  part  of  his  debt,  which  he  is  entitled  to  receive  out 
of  the  profits.  When  the  mortgagor  is  in  possession,  and  neglects  to 
pay  taxes  which  are  a  lien  on  the  land,  the  mortgagee  may  pay  them 
not  only  in  reliance  on  the  personal  liability  of  the  owner,  but  in  re- 
liance that  the  land  is  liable,  and  the  lien  will  be  deemed  as  trans- 
ferred by  the  state  to  him  in  favor  of  the  mortgage  debt ;  Kortright 
V.  Cady,  23  Barb.  490.  Where  a  mortgagee  is  under  the  necessity 
of  satisfying  an  execution  on  a  prior  judgment,  to  preserve  his  se- 
curity, he  is  held  by  right  of  substitution  to  stand  in  the  place  of  the 
judgment  creditor,  and  on  sale  of  the  land  is  entitled  to  receive  the 
amount  of  the  judgment  out  of  the  fund  as  well  as  the  mortgage 
debt.  The  payment  of  the  judgment  is  an  act  which  the  mortgagee 
was  compelled  to  do  for  his  own  safety :  Silver  Lake  Bank  v.  North, 
4  Johns.  Ch.  370.  The  principle  of  subrogation  in  such  case,  for 
purposes  of  lien  and  distribution,  is  familiar,  and  it  often  applies 
when  there  can  be  no  recovery  in  a  personal  action. 

It  is  a  clearly  established  principle  that  no  assumpsit  will  be  raised 
by  the  mere  voluntary  payment  of  the  debt  of  another  person  ;  from 
such  act  a  request  and  promise  are  not  implied.  Another  principle 
is,  that  when  the  plaintiff  is  compelled  to  pay  the  defendant's  debt, 
in  consequence  of  his  omission  so  to  do,  the  law  infers  that  he  re- 
quested the  plaintiff  to  make  the  payment  for  him.  As  when  the 
plaintiff,  at  the  request  of  the  defendant,  left  a  carriage  on  the  de- 
fendant's premises,  and  the  carriage  was  distrained  for  rent,  it  was 
held  that  the  plaintiff',  having  paid  the  rent,  could  recover  it.  In 
such  case  and  the  like,  it  is  not  permitted  to  the  defendant  to  defend 
on  the  ground  that  the  payment  was  voluntary.  In  some  cases  when 
a  plaintiff  has  voluntarily  performed  a  duty  which  the  defendant  was 
under  a  strict  legal  liability  to  perform,  he  may  recover  the  money 
expended,  although  there  had  been  no  express  consent  or  request 
by  the  defendant  to  the  plaintiff's  act.  As  when  a  man,  in  the  ab- 
sence of  the  husband,  incurs  expense  in  burying  the  deceased  wife 
in  a  manner  suitable  to  the  husband's  condition. 

There  was  a  strict  legal  liability  on  the  defendant  to  pay  the  taxes. 
And  it  was  his  duty.  Prompt  payment  of  taxes  is  to  the  public  ad- 
vantage. Attempts  by  him  who  owes  and  ought  to  pay  them  to 
evade  payment,  or  shift  the  burden  upon  another,  ought  not  to  be 
encouraged.  The  defendant  has  shown  nothing  which  in  good  con- 
science should  relieve  him.  He  wittingly  became  owner  and  held 
possession  of  the  lots  subject  to  the  mortgages,  and  had  as  little  right 
to  create  or  suffer  an  encumbrance,  which  would  take  preference  of 
the  mortgage  as  the  mortgagor  would  have  had.  had  he  remained 
owner  and  in  possession.  The  mortgagee  was  compelled  to  pay  the 
taxes  in  relief  of  the  land  purchased  for  his  debt,  the  land  not  rais- 
ing a  fund  sufficient  to  pay  both  liens.  We  are  of  opinion  this  is  a 
clear  case  for  application  of  the  principle  that  he  who  is  compelled 
to  pay  another's  debt,  because  of  his  omission  to  do  so,  may  recover 


IN    GENERAL.  447 


on  the  ground  that  the  law  infers  that  the  debtor  requested  such 
payment.    The  plaintiff's  first  point  should  have  been  affirmed. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded.^ 


NICHOLS  V.  D.  P.  BUCKNAM. 

117  Mass.  488.— 1875. 

Contract.  The  first  and  second  counts  were  for  money  paid  to 
prevent  the  enforcement  of  a  mechanic's  Hen  for  labor  on  a  block  of 
houses  owned  by  the  plaintiff,  which  money  the  defendant  agreed  to 
pay. 

Milo  Scott  entered  into  a  written  contract  with  the  plaintiff  to  fur- 
nish the  labor  and  materials  and  build  a  block  of  houses  on  the  land 
of  the  plaintiff  in  Somerville,  for  the  sum  of  $5,450.  The  defendant 
verbally  agreed  with  Scott  to  furnish  material  and  do  the  plaster  and 
brick  work  of  the  block,  and  thereafter  actually  furnished  the  ma- 
terial and  performed  the  work.  In  so  doing  the  defendant  employed 
William  E.  Bucknam,  his  brother,  with  other  men,  to  work  on  the 
block ;  and  William  E.  actually  worked  on  said  block  for  the  de- 
fendant from  August  5,  1870,  to  October,  1870,  charging  therefor 
the  sum  of  $253.25,  and  agreeing  not  to  call  on  the  defendant  for  his 
pay  till  Scott  had  paid  him.  In  November,  1870,  William  E.  Buck- 
nam commenced  proceedings  to  enforce  his  lien  against  said  land  and 
block  of  houses,  and  obtained  a  verdict  in  the  superior  court  for  the 
county  of  Middlesex  on  January  15,  1872,  for  the  sum  of  $206.82, 
as  damages,  and  costs  taxed  at  $45.42,  though  no  decree  for  a  sale  of 
the  premises  was  ever  entered.  The  defendant  knew  of  the  pro- 
ceedings to  enforce  said  lien,  and  was  present,  and  testified  in  favor 
of  his  brother  at  the  trial.  The  plaintiff,  on  March  14,  1872,  paid 
William  E.  Bucknam  the  amount  of  said  verdict  and  costs,  as  above 
stated,  to  avoid  further  proceedings  for  the  enforcement  of  said 
lien ;  and  at  March  term,  1872,  of  said  court,  W^illiam  E.  gave  the 
plaintiff"  a  writing  acknowledging  "full  satisfaction  of  the  debt  and 
costs  of  suit,  and  of  judginent  and  decree  therein,"  and  the  same  was 
filed  in  the  court  on  March  14,  1872,  The  plaintiff  paid  $68,  as  wit- 
ness and  counsel  fees  in  defending  said  lien  suit,  and  demanded  of 
the  defendant,  before  service  of  his  writ,  the  sum  of  $382.21,  the 
amount  of  said  verdict,  costs  and  expenses,  which  the  defendant  re- 
fused to  pay.  The  plaintiff  had  overpaid  Scott  on  his  contract  to  the 
amount  of  $264,  before  the  commencement  of  the  proceedings,  to  en- 
force said  lien.     Both  plaintiff  and  defendant  alleged  exceptions. 

Ames,  J. — It  appears  upon  this  report  that  the  plaintiff,  in  order  to 

^Accord,  Irvine  v.  Angus,  93  Fed.  629  (1899),  where  lienholder  upon  stock 
paid  assessments  to  preserve  his  lien. 


448  CONSTRAINT   BY   FAULT    OF   DEFENDANT. 

save  his  property  from  being  sold  on  legal  process,  has  been  com- 
pelled to  pay  a  debt  which  was  really  due  from  the  defendant.  Un- 
der such  circumstances,  the  law  implies  a  request  on  the  defendant's 
part,  and  a  promise  to  repay ;  and  the  plaintiff  has  the  same  right  of 
action  as  if  he  had  paid  the  money  at  the  defendant's  express  request. 
Exall  V.  Partridge,  8  T.  R.  308;  i  Smith  Lead.  Cas.  (5th  Am.  ed.) 
70a,  73 ;  Hale  v.  Huse,  10  Gray  99. 

But  the  costs  incurred  in  defending  against  the  claim  stand  on  other 
grounds.  The  judge  in  the  court  below  has  held  that  they  should  be 
disallowed ;  his  decision  in  matter  of  fact  is  conclusive ;  and  there  is 
nothing  in  the  bill  of  exceptions  to  show  that  he  erred  in  matter  of 
law  in  so  holding.     *     *     *  Overruled.^ 


TICONIC  BANK  v.  DAVID  SMILEY. 

27  Me.  225. — 1847. 

Whitman,  C.  J. — This  being  an  action  of  assumpsit,  to  maintain 
it,  there  must  be  evidence  of  a  promise,  either  express  or  implied.  It 
is  not  pretended  that  there  was  any  express  promise.  Was  there  an 
implied  one  ?  The  defendant  was  the  holder  of  a  note  of  hand,  made 
to  him  by  one  Romans,  and  lent  it  to  Thomas  Smiley,  in  order  that 
he  might  pledge  it  to  the  plaintiffs,  and  thereby  obtain  delay  of  pay- 
ment for  a  debt  he  owed  them ;  and  he  having  deposited  it  for  that 
purpose  before  it  had  been  indorsed  by  the  defendant,  an  agent  of 
the  plaintiffs  called  on  him  to  indorse  it,  and  he  thereupon  put  upon 
the  back  of  the  note,  "indorser  not  holden,  David  Smiley ;"  at  the 
same  time  remarking,  he  had  no  doubt  the  note  was  good,  and  he  was 
then  aware  of  the  object  of  Thomas  in  putting  the  note  into  the  hands 
of  the  plaintiffs.  It  appears  that,  at  the  same  time,  Romans  had  an 
account  with  the  defendant,  on  which  there  was  a  balance  of  $51.80 
due  from  the  latter,  which,  as  the  note  had  then  been  due  for  a  long 
time,  it  would  be  the  right  of  the  maker  to  have  set  off,  as  in  payment 
of  it  pro  tanto,  in  whose  ever  hands  it  might  be  found  ;  and  this  right 
he  availed  himself  of  when  sued  by  the  plaintiffs.  This  balance,  it 
is  insisted,  under  these  circumstances,  that  the  defendant  must  be 
considered  as  having  impliedly  promised  to  pay  to  the  plaintiffs. 

If  the  defendant  is  liable  for  the  amount  claimed  upon  the  ground 
of  an  implied  promise,  it  must  be  because  he  has  received  that  amount 
for  the  plaintiffs,  or  because  they  have  paid  that  amount  for  him. 
There  is  no  other  possible  ground  upon  which  such  a  promise  can 
be  raised.  Now,  has  he  received  any  sum  of  money  for  them?  It 
does  not  appear  that  he  had  ever  received  any  sum  whatever,  ex- 
pressly in  payment  of  the  note.  When,  therefore,  he  received  the 
balance  due  on  the  account  he  could  not  have  received  it  for  the  plain- 
tiffs.    But,  by  the  operation  of  law,  the  plaintiffs  have  been  com- 

'  See  also,  Constantinidcs  v.  Walsh,  reported  herein,  ante,  p.  30. 


I 


IN    GENERAL,  449 

pelled,  in  effect,  to  pay  a  debt  due  from  him.  The  note  was  trans- 
ferred to  the  plaintiffs  as  bcinp^  wholly  due,  lioth  parties  must  so  have 
understood  it,  and  so  in  fact  it  was,  but  the  maker  had  a  balance  of 
an  account  against  the  defendant,  constituting  a  debt  due  by  the  lat- 
ter to  the  former.  This,  at  the  time  the  plaintiffs  took  the  note,  and 
when  the  defendant  indorsed  it,  was  unknown  to  them.  If  the  de- 
fendant was  aware  of  it,  he  did  not  acquaint  them  with  the  fact,  and 
from  his  conduct  we  must  presume  it  did  not  occur  to  him.  The 
plaintiffs,  not  being  apprised  of  any  such  claim  in  set-off,  were  en- 
titled to  find  the  note  free  from  any  such  claim,  but  by  operation  of 
law,  were,  nevertheless,  compelled  to  pay  a  debt,  which  in  equity  and 
good  conscience  the  defendant  should  have  kept  from  being  so 
claimed  and  paid.  He  therefore  may  be  considered  as  having,  in 
effect,  requested,  or  perhaps  more  properly,  as  having  compelled  the 
plaintiffs  to  pay  the  amount  claimed. 

The  mode  in  which  the  defendant  indorsed  the  note  exonerates 
him,  only,  from  being  liable  in  the  case  of  the  avoidance  or  inability 
of  the  maker,  and  is  no  bar  to  a  claim  like  the  one  here  set  up.  Such 
indorsements  are  very  common,  and  the  extent  of  the  meaning  of 
them  is  well  understood  and  defined.  It  is  never  understood,  in  such 
cases,  if  payments  have  been  made,  or  if  set-offs  can  be  claimed, 
when  the  note  exhibits  no  indication  of  them,  and  the  indorser  leaves 
the  indorsee  in  entire  ignorance  of  anything  of  the  kind,  that  the 
indorser  is  free  from  responsibility.  Defendant  defaulted.^ 


SARGENT  V,  CURRIER. 

49  N.  H.  310.— 1870. 

Assumpsit,  by  Jacob  Sargent  against  Levi  Currier,  for  money 
paid,  and  money  had  and  received.  Writ  dated  May  27,  1868.  Plea: 
The  general  issue  and  brief  statement  of  the  statute  of  limitations. 
The  plaintiff  claimed  to  recover  $100  and  interest  from  June  2,  1862. 
One  Carter,  owning  a  horse,  mortgaged  it  to  one  Hill,  and  afterward 
sold  it  to  defendant,  September  4,  1861 ;  and,  in  one  or  two  months 

^  In  Van  Santen  v.  Standard  Oil  Co.,  81  N.  Y.  171  (1880),  "plaintiff's  com- 
plaint alleged  in  substance  that  defendant,  at  the  request  of  S.,  loaded  a  ves- 
sel with  petroleum,  and  by  representations  that  it  had  put  on  board  no  barrels 
more  than  it  had  in  fact,  induced  the  master  of  the  vessel  to  give  to  S.  a  bill 
of  lading  for  that  amount  in  excess  of  the  actual  amount  loaded,  and  S.  paid 
defendant  therefor;  that  S.  assigned  the  bill  of  lading,  and  the  assignees,  on 
arrival,  compelled  the  master  to  pay  for  the  deficiency.  Plaintiff  claimed,  as 
assignee  of  the  master,  to  recover  the  amount  so  paid.  Held,  that  a  de- 
murrer to  the  complaint  was  properly  overruled ;  that  as  the  payment  was 
compulsory,  caused  bv  the  act  of  defendant,  the  law  implied  a  promise  on  his 
part  to  repay  it."' — Syllabus. 

Woodruff's  Cases — 29 


450  CONSTRAINT    BY    FAULT    OF   DEFENDANT. 

after  that  time,  the  horse  passed  by  exchange  from  defendant  to 
plaintiff,  and  by  exchange  the  horse  afterward  passed  to  one  Phil- 
brick,  and  from  him  to  one  Hodgdon.  Hill  then  took  the  horse  on 
his  mortgage  from  Hodgdon,  and  sold  the  horse  on  the  mortgage  for 
$ioo,  at  an  auction  sale  June  2,  1862;  one  Sawyer  being  the  pur- 
chaser. Hodgdon  soon  afterward  bought  the  horse  of  Sawyer  and 
paid  him  $100. 

The  defendant,  plaintiff,  Philbrick  and  Hodgdon  were  not  aware  of 
the  existence  of  the  mortgage,  until  Hill  took  the  horse  from  Hodg- 
don. Upon  demand  made  by  Hodgdon,  Philbrick  paid  him  $100, 
and  upon  demand  made  by  Philbrick,  plaintiff  paid  him  $100,  plain- 
tiff made  demand  on  defendant,  and  he  refused  to  pay  him  anything. 
This  suit  was  brought  within  six  years  of  the  sale  on  the  mortgage, 
and  the  payment  made  by  plaintiff  to  Philbrick,  but  m.ore  than  six 
years  after  the  contract  of  exchange  between  plaintiff  and  defendant. 
Two  questions  were  reserved :  First,  can  assumpsit  for  money  paid, 
or  had  and  received,  be  maintained?  Secondly,  is  plaintiff's  claim 
barred  by  the  statute  of  limitations  ? 

Smith,  J. — When  the  defendant  exchanged  horses  with  the  plain- 
tiff, he  impliedly  warranted  the  title  to  the  horse  given  by  him  in 
exchange,  and  the  defendant  thereby  became  answerable  to  the  plain- 
tiff, in  case  the  title  proved  defective,  whether  the  defendant  knew 
the  defect  of  his  title  or  not :  i  Par.  on  Con.  4th  Ed.  457-8 ;  2  Kent's 
Com.  478.  This  implied  warranty  is  not  confined  to  the  vender's 
right  to  sell,  but  is,  in  substance,  a  warranty  that  his  title  is  perfect, 
and  free  from  all  liens  and  incvimbrances.  See  Dresser  v.  Ainsworth, 
9  Barbour  619.  The  plaintiff,  having  paid  Philbrick,  who  paid 
Hodgdon,  who  paid  the  amount  requisite  to  relieve  the  property  from 
the  mortgage,  is  entitled,  as  against  the  defendant,  to  be  regarded  as 
having  himself  discharged  the  incumbrance.  The  property  could  not 
have  been  relieved  from  the  mortgage  without  the  payment ;  the  pay- 
ment, therefore,  was  not  voluntary,  but  compulsory.  See  Grose,  J., 
in  Exall  v.  Partridge,  8  Term  308,  p.  311  ;  Wilde,  J.,  in  Gleason  v. 
Dyke,  22  Pick.  390,  p.  393-4.  The  plaintiff  has  been  compelled  to  pay 
money,  which  the  defendant  ought  to  have  paid ;  and  which,  as  be- 
tween plaintiff  and  defendant,  the  defendant  was  primarily  liable  to 
pay.  A  request  may  be  implied,  "if  money  be  paid  by  a  person  in 
consequence  of  a  legal  liability  to  which  he  is  subject,  but  from  which 
a  third  person  ought  to  have  relieved  him  by  himself  paying  the 
amount ;"  i  Ch.  PI.  13th  Am.  Ed.  350,  351 ;  2  Green.  Ev.,  §  114.  It 
is  upon  the  ground  of  an  implied  request  that  sureties  are  allowed  to 
maintain  a  count  for  money  paid  against  their  principals.  Hunt  v. 
Amidon.  4  Hill  (N.  Y.)  345,  is  an  authority  to  the  point,  that  the 
vendor  of  incumbered  property  is  liable,  in  a  count  for  money  paid 
to  the  purchaser,  who  is  compelled  to  discharge  the  incumbrance  in 
order  to  retain  the  propcrtv.  See,  also,  Ticonic  P>ank  v.  Smiley,  27 
Mc.  225;  Exall  V.  Partridge,  8  Term  308;  AlcTntyre  v.  Ward,  18 
Vt.  434;  Kearney  v.  Tanner,  17  Serg.  8z  Rawle  94:  Francisco  v. 
Wright,  2  Gilman  (111.)  69T,  may,  perha]>6,  be  regarded  as  an  au- 


CONTRIBUTION.  45 1 

thority  favorable  to  the  defendant.  Our  conclusion  is  that  the  plaiu- 
tifif  may  maintain  the  count  for  money  paid ;  and  that  the  statute  of 
limitations  is  not  a  bar,  because  the  cause  of  action  did  not  accrue 
till  the  money  was  paid.  It  is  unnecessary  to  consider  whether  the 
other  count  can  be  maintained.  Case  discharged. 


ii.  Contribution. 


I.     CONTRACTORS. 


CHIPMAN  V.  MORRILL  &  WEBSTER. 

20   CaL.    131. — 1862. 

Field,  C.  J.,  delivered  the  opinion  of  the  court.  Norton,  J.,  con- 
curring.— The  property  of  the  plaintiff  was  sold  under  execution  to 
satisfy  a  judgment  recovered  against  the  plaintiff  and  the  defendants, 
and  this  action  is  brought  to  enforce  payment  from  the  defendants 
of  their  proportionate  charge.  The  questions  for  determination  arise 
upon  the  pleadings.  The  papers  read  on  the  motion  for  a  new  trial 
we  cannot  look  into,  as  there  is  no  appeal  from  the  order  denying  the 
motion.  The  complaint  sets  forth  that  in  December,  1853,  the  plain- 
tiff and  the  defendants  purchased  certain  real  estate  situated  in  Ala- 
meda county,  and  gave  to  the  vendor,  in  part  payment  for  the  same, 
their  joint  promissory  note  for  $11,666,  secured  by  a  mortgage  upon 
the  property ;  that  the  plaintiff  by  the  purchase  became  the  owner  of 
one  undivided  half  of  the  premises,  and  each  of  the  defendants  be- 
came the  owner  of  one  undivided  fourth ;  that  the  note  was  not  paid, 
and  that  suit  was  commenced  for  the  foreclosure  of  the  mortgage, 
in  which  judgment  was  recovered  against  the  plaintiff  and  the  defend- 
ants for  $11,666,  and  a  decree  entered  directing  the  sale  of  the  prem- 
ises for  the  satisfaction  of  the  judgment ;  that  under  the  decree  the 
mortgaged  premises  were  sold,  and  after  the  application  of  the  pro- 
ceeds to  the  payment  of  the  amount  due  upon  the  judgment,  there 
remained  a  deficiency  of  $8,040 ;  that,  for  this  deficiency,  and  the 
percentage,  interest  and  costs  an  execution  was  issued  on  the  ist 
of  July,  1856,  and  under  it,  on  the  30th  of  the  same  month,  prop- 
erty of  the  plaintiff  was  sold  for  the  svmi  of  $12,000,  and  the  amount 
applied  to  the  satisfaction  of  the  deficiency  and  interest,  percentage 
and  costs ;  that  the  deficiency  was  due  from  the  plaintiff  and  de- 
fendants in  the  same  proportions  between  themselves,  as  they  were 
the  purchasers  and  owners  of  the  premises ;  that  is,  one-half  from  the 
plaintiff,  and  one-fourth  from  each  of  the  defendants ;  but  as  the 
whole  amount  was  paid  by  the  plaintiff,  the  defendants  are  bound  to 
make  contribution  to  him  in  proportion  to  their  interests.  Then  fol- 
lows a  prayer  for  judgment  that  each  defendant  be  required  to  pay 


452  CONSTRAINT   BY   FAULT   OF   DEFENDANT. 

the  plaintiff  the  sum  of  $3,000,  with  interest  from  July  30,  1856,  and 
for  such  other  and  further  relief  as  to  equity  shall  seem  meet. 

To  this  complaint,  the  defendant,  Webster,  demurred  on  various 
grounds,  and  among  others,  on  the  ground  that  there  was  a  mis- 
joinder of  parties,  because  the  cause  of  action  was  several  against 
each  of  the  defendants,  and  on  the  ground  that  it  appeared  that  more 
than  two  years  had  elapsed  from  the  time  the  cause  of  action  accrued 
before  the  suit  was  commenced.  The  court  sustained  a  demurrer, 
and  the  plaintiff  declining  to  amend  his  complaint,  final  judgment 
was  entered  thereon.  The  defendant,  Morrill,  answered,  denying,  to 
use  the  language  of  his  answer,  "the  greater  part  of  the  allegations  of 
the  complaint,"  without  saying  what  those  allegations  were,  and  set- 
ting up,  or  rather  attempting  to  do  so,  the  statute  of  limitations  and  a 
discharge  under  the  insolvent  lav/  of  the  state.  The  plaintiff,  instead 
of  demurring  to  the  defective  answer,  filed  a  replication  to  it,  denying 
the  bar  of  the  statute  and  the  discharge  in  insolvency.  The  case  was 
then  submitted  upon  the  pleadings.  Upon  them  the  court  gave  judg- 
ment for  the  defendant.  It  is  from  these  two  judgments,  one  in  favor 
of  the  defendant,  Webster,  on  the  demurrer,  and  the  other  in  favor 
of  the  defendant,  Morrill,  on  the  pleadings,  that  the  appeal  is  taken. 

The  appellant,  in  his  argument  of  the  appeal,  takes  two  positions : 
First,  that  the  action  is  one  in  equity  to  enforce  a  contribution  from 
two  or  three  obligors,  to  which  the  statute  does  not  create  a  bar  until 
after  the  lapse  of  four  years  (Act  of  April  22,  1850,  defining  the 
time  for  commencing  civil  actions,  §  19)  ;  and  second,  that  if  the  ac- 
tion be  regarded  as  depending  upon  contract,  that  such  contract  is 
founded  upon  an  instrument  in  writing,  and  to  the  action  the  statute, 
in  consequence,  fixes  a  like  limitation  of  four  years. 

I.  In  support  of  the  first  position,  the  appellant  cites  various  au- 
thorities upon  the  doctrine  of  contributions  as  between  co-sureties, 
to  the  effect  that  such  doctrine  depends  more  upon  a  principle  of 
equity  than  upon  contract.  Such  is  undoubtedly  the  case  as  between 
co-sureties,  and  the  principle  is,  that  where  there  is  a  common  liabil- 
ity, equality  of  burthen  is  equity.  Courts  of  equity,  therefore,  natu- 
rally took  jurisdiction  of  cases  of  contribution  where  one  surety  had 
paid  more  than  his  just  proportion.  But  the  equitable  doctrine,  in 
progress  of  time,  became  so  well  established  that  parties  were  pre- 
sumed to  enter  into  contracts  of  suretyship  upon  its  knowledge ;  and 
consequently,  upon  a  mutual  understanding  that  if  the  principal 
failed,  each  would  be  bound  to  share  with  the  others  a  proportionate 
loss.  Courts  of  common  law  thereupon  assumed  jurisdiction  to  en- 
force contribution  between  the  sureties,  proceeding  on  the  principle 
that  from  their  joint  undertaking  there  was  an  implied  promise  on  the 
part  of  each  surety  to  contribute  his  share,  if  necessary,  to  make  up 
the  common  loss.  Craythorne  v.  Swinburne,  14  Vcs.  164;  Sans- 
dale's  Administrators  and  Heirs  v.  Cox,  7  Mon.  403 ;  Campbell  v. 
Mesier,  4  Johns.  Ch.  339 ;  8  Am.  Dec.  570 ;  i  Madd.  236 ;  Fletcher 
V.  Grovcr,  ii  N.  H.  369;  28  Am.  Dec.  359.  This  jurisdiction  of  the 
common-law  courts  did  not,  however,  impair  the  concurrent  jurisdic- 


CONTRIBUTION.  453 

tion  of  equity.  Indeed,  in  many  cases,  especially  where  the  sureties 
were  numerous,  and  some  of  them  insolvent,  or  where  some  of  the 
sureties  had  died,  courts  of  equity  were  alone  adequate  to  afford  a 
complete  remedy.  Wright  v.  Hunter,  5  Ves.  194;  Wayland  v. 
Tucker,  4  Gratt.  268 ;  50  Am.  Dec.  y^ ;  Couch  v.  Terry's  Adm'rs,  12 
Ala.  228. 

It  is  also  true  that  the  doctrine  of  contribution  applies  equally  be- 
tween those  who  are  original  co-contractors  ;  that  is,  between  those 
who  are  jointly  bound  on  their  own  account  (not  being  co-partners), 
as  it  does  between  those  who  are  co-sureties;  that  is,  jointly  bound 
to  answer  for  the  debt  or  default  of  another.  Thus,  if  a  note  were 
given  for  the  cost  of  a  partition  wall  by  the  owners  of  the  adjoining 
premises,  between  which  the  wall  was  constructed,  and  one  of  the 
parties  should  pay  the  entire  amount  of  the  note,  or  more  than  his 
proportionate  part,  he  could  claim  a  contribution  from  the  other. 
Campbell  v.  Mesier,  4  Johns.  Ch.  335. 

But  the  present  case  is  not  one  for  contribution  between  parties 
who  have  sustained  a  common  loss  upon  a  common  liability.  The 
note  of  the  plaintiff  and  defendants,  upon  which  the  judgment  was 
rendered,  was  given  upon  the  purchase  of  real  estate  in  which  the 
parties  took  separate  and  distinct  interests — the  plaintiff  one  undi- 
vided half,  and  each  of  the  defendants  one  undivided  fourth,  and  be- 
tween themselves  the  obligation  of  each  was  to  pay  for  his  respective 
interest.  In  giving  their  joint  note  for  the  whole  amount  of  the 
purchase  money,  each  party  was  principal  for  the  amount  of 
his  own  interest,  and  co-surety  for  the  remaining  interests.  Thus, 
the  plaintiff  was  principal  for  one-half  of  the  purchase  money  and 
co-surety  with  Webster  for  one-fourth  of  the  same  for  Morrill, 
and  co-surety  with  Morrill  for  one-fourth  for  Webster.  Goodall 
V.  Wentworth,  20  Me.  322.  When,  therefore,  the  plaintiff  paid 
the  entire  amount  of  the  judgment  recovered  upon  the  note — or 
what  is  the  same  thing,  when  the  proceeds  of  the  property  of  the 
plaintiff  sold  under  execution  were  applied  to  such  payment — he 
became  entitled  to  maintain  an  action  against  the  defendants  for 
moneys  paid  on  their  account.  The  demands  which  he  could  then 
assert  were  several  in  their  character.  They  were  demands  not  for 
contribution,  but  for  reimbursement  of  moneys  paid.  The  action 
should,  therefore,  have  been  against  the  defendants  separately,  upon 
the  assumpsit,  which  the  law  implies,  where  a  surety  is  compelled  to 
advance  money  for  his  principal.  Parker  v.  Ellis,  2  Sandf.  223  ; 
Odlin  V.  Greenleaf,  3  N.  H.  270;  Murice  v.  Hefferman,  13  Johns. 
59;  Lapham  v.  Barnes,  2  Vt.  213;  Frazier  v.  Goode,  3  Rich.  199; 
Babcock  v.  Hubbard,  2  Conn.  536;  Ward  v.  Henry,  5  Conn.  596;  13 
Am.  Dec.  1 19.  Judgment  affirmed. 


454  CONSTRAINT   BY    FAULT   OF   DEFENDANT. 

GOLSEN  V.  BRAND. 
75  III.  148.— 1874. 

Mr.  Justice  Sheldon. — This  was  an  action  of  assumpsit,  brought 
by  Brand  against  Golsen,  for  contribution.  Otto  Hartung  and  Ida 
Hartung,  his  wife,  made  their  promissory  note,  bearing  date  Febru- 
ary I,  1873,  payable  six  months  after  date,  with  ten  per  cent,  inter- 
est, to  Jacob  Keller.  Before  the  delivery  of  the  note  to  Keller,  Gol- 
sen and  Brand,  at  the  instance  of  the  maker,  Hartung,  and  on  require- 
ment of  the  payee,  wrote  their  names  in  blank  upon  the  back  of  the 
note,  Golsen  writing  his  first ;  and  on  the  26th  day  of  July,  1873,  Otto 
Hartung,  having  previously  gone  into  bankruptcy.  Brand  paid  the 
note  to  Keller,  and  afterward  brought  this  action  against  Golsen, 
to  recover  one-half  of  the  amount  so  paid.  He  recovered  in  the 
court  below,  and  Golsen  appealed. 

The  obligation  which  Golsen  and  Brand  assumed  by  writing  their 
names  upon  the  back  of  the  note,  was,  under  the  decisions  in  this 
state,  that  of  guarantors.  No  question  is  made  in  this  respect,  but, 
inasmuch  as  the  proof  shows  that  Golsen  and  Brand  made  the  in- 
dorsements of  their  names  at  different  times,  not  in  the  presence  of 
each  other,  and  without  any  agreement  or  concert  between  themselves 
in  the  matter,  it  is  claimed  by  appellant  that  the  parties  entered  into 
the  guarantees  they  made,  severally,  and  that  there  is  no  liability  to 
contribution ;  that  to  enforce  contribution,  the  parties  must  have 
been  joint  guarantors.  Such  a  claim  is  without  any  legal  support. 
It  was  enough  that  the  parties  were  co-guarantors;  they  were  not 
required  to  be  otherwise  joint  guarantors.  The  right  to  contribution 
does  not  arise  out  of  any  contract  or  agreement  between  co-sureties 
to  indemnify  each  other,  but  on  the  principle  of  equity,  which  courts 
of  law  enforce,  that  where  two  persons  are  subject  to  a  common 
burden,  it  shall  be  borne  equally  between  them.  It  is  well  settled 
that  different  sureties  occupy  toward  each  other  the  relation  of  co- 
sureties, and  that  contribution  may  be  enforced  between  them,  al- 
though they  may  have  become  bound  jointly,  or  severally,  by  differ- 
ent instruments,  at  different  times,  and  without  the  knowledge  of 
each  other,  provided  that  the  obligations  into  which  they  enter  are 
for  the  same  engagement  and  for  the  same  principal,  and  it  does  not 
appear  that  one  obligation  was  intended  to  be  secondary  or  collateral 
to  the  others.  It  is  sufficient  for  the  right  to  claim  contribution,  that 
it  appears  that  the  parties  were  under  obligation  to  pay  the  same  debt 
as  sureties  for  a  third  person.  These  principles  find  support  in  the 
following,  among  other  authorities:  Norton  v.  Coons,  3  Denio,  132; 
Armitage  v.  Pulvcr,  37  N.  Y.  494;  Warren  v.  Morrison,  3  Allen 
567:  Dcring  v.  Earl  of  Winchelsea,  i  Lead.  Cas.  Eq.  131;  s.  c. 
I  Cox's  Cases  318;  s.  c.  2  B.  &  P.  270;  Burge  on  Suretyship 
384-5;  Breckenridge  v.  Taylor,  5  Dana  112;  i  Story's  Eq.  Ju.,  sec. 


CONTRIBUTION^,  455 

495-^     We  apprehend  it  is  not  to  be  denied  that  the  same  rules  of 
contribution  govern  between  guarantors  as  between  sureties. 

Appellant's  counsel,  in  support  of  their  view,  cite  2  Pars,  on  Notes 
and  Bills  140,  where  it  is  said :  "A  guarantor  is  not  liable  for  con- 
tribution to  a  maker,  or  any  other  party  on  a  note  or  bill,  or  to  any 
person  except  one  who  is  a  joint  guarantor  wdth  himself."  But  by 
"joint  guarantor"  the  author  unquestionably  meant  no  more  than 
co-guarantor.  The  author's  text  refers  only  to  Langley  v.  Griggs, 
10  Pick.  121,  and  nothing  in  that  decision  justified  the  use  of  the  word 
*'joint"  in  the  sense  which  is  here  claimed  by  appellant.  The  same 
may  be  said  in  reference  to  the  other  citation,  that  "the  undertaking 
which  is  to  serve  as  the  foundation  of  a  claim  for  contribution  must 
be  joint,  and  not  separate  and  successive."  i  Pars,  on  Contracts  35. 
In  neither  citation  does  there  appear  any  intention  to  draw  a  dis- 
tinction in  the  case  of  co-guarantors,  or  co-sureties,  between  whether 
they  are  bound  jointly  or  severally,  and  to  hold  that  the  right  of 
contribution  exists  only  in  the  former  and  not  in  the  latter  case. 
They  afford  no  countenance  to  such  a  doctrine.     *     *     *     * 

It  is  lastly  objected  that  Brand  paid  the  note  before  it  was  due, 
on  the  26th  of  Jul^',  when  it  was  not  due  until  August  i  ;  that  there 
was  no  present  legal  liability  to  pay  the  note  at  the  time  when  it 
was  paid,  and  so  no  implied  request  to  pay  it.  But  there  was  evi- 
dence in  the  case,  from  which  the  jury  might  have  been  warranted 
in  finding  an  express  request  by  Golsen  to  Brand  to  pay  the  note 
at  the  time  he  did.  Besides,  it  has  been  held  that  payment  in  such 
a  case,  before  maturity,  is  not  necessarily  voluntary,  and  that  event- 
ual liability  is  equivalent  to  a  precedent  request.  Craig  v.  Craig, 
5  Rawle,  98. 

We  perceive  no  ground  for  reversing  the  judgment,  and  it  will 
be  affirmed. 

Judgment  affirmed. 


NORRIS  V.  CHURCHILL. 
20  Ind.  App.  668. — 1898. 

Action  by  William  Churchill  against  Benjamin  F.  Norris,  From 
a  judgment  for  plaintiff,  defendant  appeals.     Affirmed. 

Black,  J. — The  appellee  sued  the  appellant  for  contribution. 
They,  with  three  others,  jointly  purchased  a  horse,  each  of  the  five 
purchasers  paying  one-sixth  part  of  the  price.  The  remaining  one- 
sixth  part  of  the  purchase  money  they  borrowed  from  a  bank  upon 
their  joint  promissory  note  payable  at  said  bank  upon  demand.  The 
appellant,  without  the  knowledge  or  consent  of  the  appellee,  paid 
to  the  bank  the  one-fifth  part  of  the  amount  of  the  note  in  cash. 

^Accord,  Harris  v.  Ferguson,  2  Bailey  (S.  C.)  397   (1831). 


456  CONSTRAINT    BY    FAULT    OF   DEFENDANT. 

The  other  makers  thereof,  on  the  same  day,  gave  their  joint  prom- 
issory note,  negotiable  by  the  law  merchant,  to  the  bank  for  the 
balance,  being  four-fifths  of  the  amount  of  the  debt,  the  appellant 
not  joining  with  the  other  makers  in  the  execution  of  the  latter  note. 
Prior  to  the  appellant's  said  payment  of  a  part  of  the  debt,  two 
of  the  makers  of  the  original  note,  Joseph  T.  Johnson  and  Owen 
Kincaid,  had  become  insolvent,  and  they  so  continued  thereafter. 
When  the  second  note  became  due  the  makers  thereof  renewed  it, 
and  upon  this  third  note  the  bank  sued  and  recovered  judgment 
thereon  against  the  makers  thereof.  The  appellee  paid  the  judg- 
ment by  giving  his  note,  negotiable  by  the  law  merchant,  to  the 
bank,  and  the  bank  assigned  the  judgment  to  the  appellee.  The 
appellee  thus  paid  all  the  original  debt  except  the  one-fifth  part 
thereof  so  paid  by  the  appellant.  The  five  makers  of  the  original 
note  owned  equal  interests  in  the  horse.  When  the  makers  of  the 
original  note  borrowed  the  money  for  which  it  was  given,  they 
agreed  between  themselves  that  each  should  pay  one-fifth  of  the 
amount  borrowed. 

The  questions  saved  and  presented  in  this  court  may  be  disposed 
of  by  deciding  whether,  upon  such  a  state  of  facts,  the  appellee  was 
entitled  to  contribution  from  the  appellant. 

It  is  contended,  in  effect,  that  as  the  appellant  paid  in  cash  his 
agreed  share  of  the  original  note,  and  as  the  balance  thereof  was 
paid  to  the  bank  by  the  promissory  note,  negotiable  by  the  law 
merchant,  of  the  other  makers  of  the  original  note,  the  appellee 
could  not  acquire  the  right  to  contribution  from  the  appellant  by 
the  appellee's  final  compulsory  payment  of  the  balance  of  the  debt 
represented  by  the  renewed  promissory  note  negotiable  by  the 
law  merchant,  given  by  the  makers  of  the  original  note  other 
than  the  appellant.  Each  of  the  makers  of  the  joint  obliga- 
tion was  principal  as  to  his  part,  and  co-surety  for  the  others 
as  to  their  respective  parts.  Goodall  v.  Wentworth,  20  Me,  322 ; 
Bragg  V.  Patterson,  85  Ala.  233,  4  South.  716.  The  right  to  con- 
tribution originated  in  equity,  and  is  based  upon  natural  justice. 
It  applies  to  any  relation,  including  that  of  joint  contractors,  where 
equity  between  the  parties  is  equality  of  burden,  and  one  of  them 
discharges  more  than  his  share  of  the  common  obligation.  Bragg 
V.  Patterson,  supra;  Aspinwall  v.  Sacchi,  57  N.  Y,  331;  Sexton  v. 
Sexton,  35  Ind.  88.  Where  a  number  of  persons  borrowed  a  sum 
jointly,  but  received  different  portions  for  their  several  uses,  and 
one  of  the  borrowers  became  insolvent,  it  was  held  that  the  others 
should  contribute  to  pay  his  share  in  proportion  to  the  amount  re- 
ceived by  each.  Kincaid  v.  Hocker,  7  J.  J.  Marsh.  333.  In  the 
case  at  bar  the  makers  of  the  original  joint  note  derived  benefit 
equally  from  the  proceeds  of  that  note.  When  there  is  an  entire 
debt  owed  equally  by  several,  the  solvent  debtors  must  share  equally 
in  any  burden  thrown  upon  them  by  the  insolvency  of  a  part  of  their 
ntmibcr.  North  v.  Pjracc,  30  Conn.  60,  72.  Sureties  who  are  in- 
solvent arc  to  be  excluded  in  determining  the  proportions.   See  New- 


CONTRIBUTION.  457 

ton  V.  Pence,  lo  Ind.  App.  672,  38  N.  E.  484 ;  Michael  v.  Allbright, 
126  Ind.  172,  25  N.  E.  902. 

The  agreement  between  the  joint  makers  of  the  note  that,  as 
between  themselves,  they  were  to  be  bound  to  discharge  the  common 
obligation  to  the  payee  equally,  each  paying  his  equal  share,  would 
not  relieve  any  one  of  them  who  had  paid  his  ratable  share  from 
the  equitable  obligation  to  contribute  to  another  of  the  joint  makers 
who  was  compelled  to  pay  more  than  his  ratable  share.  Such  a 
contract  or  understanding  between  the  joint  makers  would  not  create 
a  relation  between  them  different  from  that  which  would  exist  by 
law  by  reason  of  the  makers  being  bound  by  a  common  obligation ; 
for,  in  such  a  case,  there  is  an  implied  contract  that  each  will  pay 
and  discharge  the  common  obligation  equally.  The  obligation  to 
make  contribution  is  based  upon  an  implied  contract  which  exists 
from  the  date  of  the  creation  of  the  relation  between  the  parties. 
The  right  is  inchoate  from  that  date.  It  becomes  complete  upon 
payment,  but  it  relates  back  to  the  time  the  relation  commenced  out 
of  which  the  right  springs.  Nally  v.  Long,  56  Aid.  567 ;  Bragg  v. 
Patterson,  supra;  Sexton  v.  Sexton,  supra.  It  is  no  defense  to  an 
action  for  contribution  that  the  defendant  has  been  released  by  the 
original  creditor.  Clapp  v.  Rice,  15  Gray,  557.  The  appellant  had 
not  performed  his  implied  contract  arising  at  the  original  creation 
of  the  joint  debt.  The  suit  for  contribution  was  not  based  upon 
any  note  or  judgment,  but  was  founded  upon  that  implied  contract. 
Equity  looks  through  mere  forms  to  find  the  natural  justice  of  the 
whole  transaction.  Two  of  the  five  original  joint  debtors  being 
insolvent,  and  the  appellee  having  been  compelled  to  pay,  in  addi- 
tion to  his  own  share,  the  shares  of  these  two  insolvents,  equity, 
which  is  equality,  demanded  that  the  debtors  who  were  not  insol- 
vent should  equally  bear  the  burden  of  the  shares  of  the  insolvents 
so  paid ;  that  the  appellant  should  reimburse  the  appellee  to  the 
extent  of  one-third  of  the  amount  which  the  latter  had  thus  been 
compelled  to  pay  in  excess  of  his  ratable  share  of  the  joint  debt. 

Counsel  for  appellee  have  suggested  that  no  question  as  to  the 
amount  of  the  recovery  was  saved  by  the  motion  for  a  new  trial, 
wherein  it  was  assigned  as  cause  that  "the  damages  assessed  by  the 
court  are  excessive."  which  is  the  fourth  statutory  cause,  and  can 
be  properly  assigned  only  in  cases  of  tort.  This  suggestion  is  sup- 
ported by  decisions.  Railroad  Co.  v.  Acres,  108  Ind.  548,  9  N.  E. 
453;  Thomas  v.  Merry,  113  Ind.  83,  91,  15  N.  E.  244;  Western 
Assur.  Co.  V.  Studebaker  Bros.  Mfg.  Co.,  124  Ind.  176,  182,  23  N. 
E.  1 138.     The  judgment  is  affirmed. 

Henley,  C.  J.,  took  no  part  in  the  consideration  or  decision  of 
this  cause. 


CONSTRAINT   BY    FAULT    OF   DEFENDANT. 

DEDMAN  V.  WILLIAMS. 

2  III.  154.— 1834. 

Lock  WOOD,  J. — This  was  an  action  brought  before  a  justice  of 
the  peace,  by  Williams  against  Dedman,  for  money  paid  by  Wil- 
liams for  the  use  of  Dedman.  On  the  trial  before  the  justice,  a 
judgment  was  rendered  in  favor  of  Williams  for  $72,371/2.  The 
cause  was  brought  by  appeal  into  the  Circuit  Court  of  Hancock 
County,  where  it  was  tried  before  a  jury,  and  judgment  for  $76.38 
recovered.  On  the  trial  in  the  Circuit  Court,  the  plaintiff  below 
proved  in  substance,  that  one  Whitney  and  others  purchased  a 
number  of  cattle  at  an  administrator's  sale,  for  which  they  gave 
their  notes  to  the  administrator.  That  afterwards  the  plaintiff  and 
defendant,  with  another  person,  purchased  half  of  said  lot  of  cattle 
of  Whitney  and  others,  paying  them  $30  for  their  bargain,  and 
agreed  to  give  their  note  in  lieu  of  said  Whitney's  note  to  said  ad- 
ministrator, he  agreeing  to  accept  plaintiff's  and  defendant's  note 
with  security,  for  one  half  of  the  amount  of  Whitney's  note,  which 
had  been  given  for  the  original  purchase  money.  That  after  the 
purchase  made  by  plaintiff  and  defendant,  and  the  agreement  of 
the  administrator  to  take  plaintiff's  and  defendant's  note  for  half  of 
the  purchase  money  as  aforesaid,  plaintiff  and  defendant  took  pos- 
session of  the  half  of  said  lot  of  cattle  as  their  joint  property.  It 
was  also  proved  that  plaintiff  and  defendant  were  to  execute  their 
note  to  said  administrator,  at  some  convenient  time.  That  shortly 
after  these  contracts,  Dedman  started  with  the  cattle  to  Galena,  to 
sell  them  on  the  joint  account  of  plaintiff  and  defendant ;  that 
during  the  absence  of  Dedman,  Williams  gave  his  note  with  security 
to  said  administrator,  for  the  price  of  said  cattle,  so  purchased  of 
said  Whitney.  And  the  said  Whitney,  upon  the  surrender  of  the 
original  note,  executed  his  note  to  said  administrator  for  the  other 
half  of  the  original  purchase  money  for  the  cattle  bought  at  said 
administrator's  sale.  That  when  Dedman  returned  from  Galena, 
he  divided  with  Williams  the  proceeds  of  the  sale  of  the  cattle. 
The  administrator  testified  that  he  held  and  considered  Dedman 
liable  to  him  on  the  promise  to  give  his  note,  and  that  he  had  not 
released  him.  On  this  state  of  the  case,  Williams  brought  his  suit 
against  Dedman,  to  recover  one-half  of  the  amount  for  which  plain- 
tiff and  defendant  had  agreed  to  give  their  joint  note  with  security 
to  said  administrator.  Some  irrelevant  testimony  was  also  pro- 
duced, which  it  is  not  necessary  to  notice.  After  the  plaintiff,  Wil- 
liams, had  concluded  the  testimony  as  above  detailed,  Dedman's 
counsel  moved  the  court  to  instruct  the  jury  to  find  for  the  defend- 
ant, as  in  case  of  a  non-suit,  which  motion,  after  argument,  was  over- 
ruled by  the  court.  After  this  motion  was  overruled,  testimony 
was  introduced  by  defendant,  and  other  instructions  were  asked ; 
but  from  the  view  taken  of  the  cases  it  will  be  unnecessary  to  notice 


'^Er 


COXTRIliUTION.  459 

any  other  point  except  the  question  whether  the  Court  ought  to 
have  instructed  the  jtu-y  that  the  ])laintift'  was  not  entitled  to  recover 
upon  the  evidence  that  he  had  adchiced. 

What  was  the  character  of  the  contract  between  the  plaintiff  and 
defendant  ?  They  purchased  of  Whitney  a  lot  of  cattle,  and  paid 
him  $30  down,  and  for  the  remainder  of  the  purchase  money  agreed 
to  give  their  joint  note  to  an  administrator  at  whose  sale  Whitney 
had  purchased  the  same  cattle.  When  the  note  was  to  be  made 
payable  does  not  appear  from  the  testimony.  It  is,  however,  a  fair 
presumption  that  some  time  was  to  intervene  before  it  became  due. 
Can,  then,  one  of  two  joint  purchasers  of  property  on  a  credit,  be- 
fore the  time  of  credit  has  expired,  by  giving  his  individual  note 
for  the  purchase  money,  immediately  sue  his  co-purchaser  for  his 
proportion  of  the  joint  debt?  We  think  not.  The  rule  of  law  is  well 
settled,  that  one  man  cannot  make  himself,  by  his  own  voluntary  act, 
the  creditor  of  another.  The  relation  that  existed  between  Williams 
and  Dedman,  by  the  purchase  of  the  cattle,  was  that  of  joint  own- 
ers or  partners,  not  that  of  debtor  and  creditor  to  each  other.  Both 
were  bound,  when  the  time  of  payment  arrived,  to  make  payment 
either  to  Whitney  or  to  the  administrator ;  and  neither  could,  by 
any  act  of  his  own,  coerce  payment  from  the  other  until  the  time 
of  payment  for  the  cattle  had  arrived.  Nor  would  it  vary  the  result 
of  the  case  if  the  time  of  payment  for  the  cattle  had  elapsed  when 
this  suit  was  brought.  The  giving  of  the  note  by  Williams  for  the 
property  purchased  for  the  joint  use  of  himself  and  Dedman,  was 
no  payment  so  far  as  Dedman  was  concerned.  Dedman  was  cer- 
tainly bound  to  pay  his  moiety  for  these  cattle,  either  to  Whitney 
or  to  the  administrator  of  whom  Whitney  purchased.  If  his  prom- 
ise to  give  his  note  to  the  administrator  should  be  void  under  the 
statute  of  frauds,  upon  which  point  it  is  unnecessary  to  give  an 
opinion,  he  would  still  be  bound  to  pay  Whitney,  of  whom  he  and 
Williams  made  the  purchase.  As  we,  however,  consider  the  law 
well  settled,  that  one  co-partner  or  co-purchaser  can  in  no  case 
recover,  in  an  action  for  money  paid,  against  his  co-partner  or  co- 
purchaser,  vmtil  the  money  has  actually  been  paid,  nor  then  until 
the  time  of  payment  has  arrived,  we  are  of  opinion  that  the  instruc- 
tion ought  to  have  been  given.  Had  the  instruction  been  given, 
the  plaintiff  would  doubtless  have  submitted  to  a  non-suit.  This 
court,  therefore,  reverses  the  judgment  below,  and  renders  such 
judgment  as  ought  to  have  been  rendered,  to  wit,  a  judgment  as  in 
case  of  non-suit  with  costs. 

Judgment  reversed,  and  judgment  of  non-suit  rendered.^ 

^  In  Witherby  v.  Mann,  11  Johns.  518  (1814),  the  court  says  (p.  520)  :  "The 
mere  giving  a  bond  for  the  debt  of  another  is  no  payment ;  and  an  action 
for  money  paid,  laid  out  and  expended  for  the  use  of  the  person  for  whose 
debt  the  obligation  is  j^iven,  will  not  lie.  The  money  must  actually  be  ad- 
vanced to  sustain  the  action.  (Cummings  v.  Hackley.  8  Johns.  Rep.  202.) 
But  this  principle  has  not  been  extended  to  all  kinds  of  securities  thus  given. 
There  are  cases  in  which  negotiable  paper  has  been  held  equivalent  to  the 


460  CONSTRAINT   BY   FAULT    OF   DEFENDANT. 

CRAIG  V.  CRAIG. 
5  Rawle   (Pa.)   91.— 1835. 

Indebitatus  assumpsit,  brought  by  Charles  against  Thomas 
Craig,  to  recover  one-half  of  two  bonds,  each  in  the  sum  of  three 
hundred  dollars,  in  which  they  were  jointly  bound  to  their  father, 
General  Craig ;  the  whole  of  which  Charles  alleged  that  he  had  paid. 
The  declaration  contains  counts  for  money  paid,  laid  out  and  ex- 
pended ;  for  money  lent  and  advanced ;  and  for  money  had  and  re- 
ceived.    The  plea  was  non  assumpsit. 

The  defendant's  counsel  requested  the  answer  of  the  court  to  the 
following  points,  in  their  charge  to  the  jury.     *     *     *     * 

2.  If  the  plaintifif  voluntarily  paid  more  than  his  portion  of  the 
bonds  before  they  fell  due,  is  he  entitled  to  recover  in  this  ac- 
tion p     *     *     ^     ^ 

Answer  to  the  second  point.  If  the  plaintiff,  being  one  of  the 
co-obligors,  did  pay  the  money  to  General  Craig  before  the  bond 
became  due,  he  is  entitled  to  recover  of  the  defendant  his  share  of 
the  money  after  the  time  mentioned  for  the  payment  of  the  bonds 
has  expired,  and  not  before.     *     *     *     * 

To  which  opinion  of  the  court  the  defendant,  by  his  counsel,  ex- 
cepted.    *     *     *     * 

Gibson,  C.  J. — *  *  *  *  The  exceptions  to  the  charge  are  not 
sustained.  Proof  of  payment  in  money  is  not  absolutely  indispens- 
able to  a  count  for  money  expended  to  the  defendant's  use  ;  though 
it  must  be  admitted  that  the  only  exception  recognized  in  the  books, 
is  the  case  of  payment  in  negotiable  paper.  But  the  direction  on 
this  head  was  in  substantial  accordance  with  the  prayer.  As  to  the 
position  taken,  that  payment  before  the  bonds  fell  due  would  be 
essentially  voluntary,  it  is  proper  to  remark,  that  the  principle  was 
ruled  differently  in  Armstrong  v.  Gilchrist,  2  Johns.  Ca.  429,  where 
it  was  held  that  a  guarantee  of  a  note  who  had  compromised  and 
paid  it  for  his  own  indemnity  before  it  had  become  due,  was  entitled 
to  recover.  That  a  surety  is  to  wait  until  payment  is  extorted  from 
him  is  not  pretended ;  but  it  is  said  that  payment  before  maturity 
is  necessarily  voluntary,  and  that  eventual  liability  is  not  equivalent 
to  a  precedent  request.  There  is  no  authority  for  that,  and  it  seems 
not  to  be  defensible  on  principle.     Why  may  not  a  surety  take  meas- 

payment  of  money,  to  -which  it  is  in  some  measure  analogous,  as  when  the 
note  has  been  negotiated  and  is  in  the  hands  of  an  innocent  endorsee.  He, 
of  course,  would  be  protected;  and,  unless  it  was  considered  as  a  payment  of 
the  original  debt,  the  drawer  might  be  made  to  pay  twice.  So  when  the  note 
has  been  accepted  and  paid  in  satisfaction  of  the  debt.  The  note,  in  this  case, 
has  not  been  negotiated,  but  has  been  accepted  and  received  by  the  party  in 
whose  favor  the  judgment  was  obtained,  in  satisfaction  of  the  debt,  which  is 
sufficient  to  authorize  this  recovery.  The  decisions  cited  against  this  apply 
only  to  cases  where  the  note  or  bill  has  not  been  accepted  in  satisfaction  for 
the  debt," 


CONTRIBUTION.  461 

ures  of  precaution  against  loss  from  a  change  in  the  circumstances 
of  his  principal,  and  accept  terms  of  compromise  before  the  day 
which  may  not  be  obtainable  after  it.  He  may  ultimately  have  to 
bear  the  burthen  of  the  debt,  and  may  therefore  provide  for  the 
contingency  by  reducing  the  weight  of  it.  Nor  is  he  bound  to  sub- 
ject himself  to  the  risk  of  an  action  by  waiting  till  the  creditor  has 
a  cause  of  action.  He  may,  in  short,  consult  his  own  safety  and 
resort  to  any  measure  calculated  to  assure  him  of  it  which  does  not 
involve  a  wanton  sacrifice  of  the  interest  of  his  principal.  If  then, 
General  Craig  delivered  these  bonds  on  a  promise  of  payment,  abso- 
lute or  conditional,  there  cannot  be  a  doubt  that  actual  payment  in 
pursuance  of  it  would  entitle  the  plaintiff  to  contribution.  All  that 
can  be  said  is  that  it  could  not  have  been  enforced  before  the  bonds 
were  due.     *     *     * 


2.     TORTFEASORS. 

MERRYWEATHER  v.  NIXAN. 
8  T.  R.  (K.  B.)  186.— 1799. 

One  Starkey  brought  an  action  on  the  case  against  the  present 
plaintiff  and  defendant  for  an  injury  done  by  them  to  his  reversion- 
ary estate  in  a  mill,  in  which  was  included  a  count  in  trover  for 
the  machinery  belonging  to  the  mill ;  and  having  recovered  £840 
he  levied  the  whole  on  the  present  plaintiff,  who  thereupon  brought 
this  action  against  the  defendant  for  a  contribution  of  a  moiety, 
as  for  so  much  money  paid  to  his  use. 

At  the  trial  before  Mr.  Baron  Thomson  at  the  last  York  assizes 
the  plaintiif  was  non-suited,  the  learned  judge  being  of  opinion  that 
no  contribution  could  by  law  be  claimed  as  between  joint  wrong- 
doers ;  and  consequently  this  action  upon  an  implied  assumpsit  could 
not  be  maintained  on  the  mere  ground  that  the  plaintiff  had  alone 
paid  the  money  which  had  been  recovered  against  him  and  the  other 
defendant  in  that  action. 

Chambre  now  moved  to  set  aside  the  non-suit ;  contending  that, 
as  the  former  plaintiif  had  recovered  against  both  these  parties,  both 
of  them  ought  to  contribute  to  pay  the  damages.     But 

Lord  Kenyon.  C.  J.,  said  there  could  be  no  doubt  but  that  the 
non-suit  was  proper ;  that  he  had  never  before  heard  of  such  an 
action  having  been  brought  where  the  former  recovery  was  for  a 
tort.  That  the  distinction  was  clear  between  this  case  and  that  of 
a  joint  judgment  against  several  defendants  in  an  action  of  assump- 
sit. And  that  this  decision  would  not  affect  cases  of  indemnity, 
where  one  man  employed  another  to  do  acts,  not  unlawful  in  them- 
selyes,  for  the  purpose  of  asserting  a  right. 

Rule  refused. 


462  CONSTRAINT  BY  FAULT  OF  DEFENDANT. 

The  case  of  Philips  v.  Biggs,  Hardres,  164,  was  mentioned  by 
Law,  for  the  defendant,  as  the  only  case  to  be  found  in  the  books 
in  which  the  point  had  been  raised ;  but  it  did  not  appear  what  was 
ultimately  done  upon  it. 


ARMSTRONG  COUNTY  v.  CLARION  COUNTY. 

66  Pa.  St.  218.— 1870. 

Read,  J. — The  bridge  across  Red  Bank  creek,  between  the  coun- 
ties of  Armstrong  and  Clarion,  at  the  place  known  as  the  Rockport 
Mills,  was  a  county  bridge,  maintained  and  kept  in  repair  at  the 
joint  and  equal  charge  of  both  counties.  Whilst  John  A.  Hum- 
phreys was  crossing  the  bridge  it  fell,  and  he  was  severely  injured; 
he  brought  suit  for  damages  against  the  county  of  Armstrong ;  and 
on  the  trial,  under  the  charge  of  the  court,  there  was  a  verdict  for 
defendant.  This  was  reversed  on  writ  of  error  (6  P.  F.  Smith 
204),  and  upon  a  second  trial  there  was  a  verdict  for  the  plaintiff 
for  $1,100  damages,  on  which  judgment  was  entered.  This  judg- 
ment with  interest  and  costs,  was  paid  by  Armstrong  county,  and 
the  present  suit  is  to  recover  contribution  from  Clarion  county.  On 
the  trial  the  learned  judge  non-suited  the  plaintiff  on  the  ground 
that  one  of  two  joint  wrongdoers  cannot  have  contribution  from  the 
other. 

The  commissioners  of  the  two  counties  had  examined  the  bridge 
in  the  summer  and  ordered  some  repairs,  which  were  made.  There 
can  be  little  doubt  that  morally  Clarion  county  was  bound  to  pay 
one-half  of  the  sum  recovered  from  and  paid  by  Armstrong  county ; 
and  the  question  is,  does  not  the  law  make  the  moral  obligation  a 
legal  one?  Merry  weather  v.  Nixan,  8  T.  R.  186,  the  leading  case 
on  the  subject,  was  of  a  joint  injury  to  real  estate,  and  for  the  joint 
conversion  of  personal  property,  being  machinery  in  a  mill.  In  Col- 
burn  V.  Patmore,  i  Cr.  M.  &  R.  73,  the  proprietor  of  a  newspaper, 
who,  for  a  libel  published  in  it,  was  subjected  to  a  criminal  informa- 
tion, convicted  and  fined,  sought  to  recover  from  his  editor,  who  was 
the  author  of  the  libel,  the  expenses  which  he  had  incurred  by  his 
misfeasance ;  Lord  Lyndhurst  said :  'T  know  of  no  case  in  which 
a  person  who  has  committed  an  act  declared  by  the  law  to  be  crim- 
inal, has  been  permitted  to  recover  compensation  against  a  person 
who  has  acted  jointly  with  him  in  the  commission  of  the  crime." 
So  in  Arnold  v.  Clifford,  2  Sumner,  238,  it  was  held,  a  promise  to 
indemnify  the  publisher  of  a  libel  is  void.  "No  one,"  said  Judge 
Story,  "ever  imagined  that  a  promise  to  pay  for  the  poisoning  of 
another  was  capable  of  being  enforced  in  a  court  of  justice."  In  Mil- 
ler V.  Fcnton,  it  I'aige  t8,  the  wrongdoers  were  two  of  the  officers 
of  a  bank,  who  had  fraudulently  abstracted  its  funds,  and  of  course 
there  could  be  no  contribution  between  criminals.  In  the  case  of 
The  Attorney-General  v.  Wilson,  4  Jurist  1174,  cited  in  the  above 


CONTIU  BUTTON.  463 

case  by  the  chancellor,  and  also  reported  in  i  Craig  &  Phillips  i, 
where  it  was  contended  that  all  the  persons  charged  with  the  breach 
of  trust  should  be  made  parties,  Lord  Cotteniiam  said:  "In  cases 
of  this  kind  where  the  liability  arises  from  the  wrongful  act  of  the 
parties,  each  is  liable  for  all  the  consequences,  and  there  is  no  con- 
tribution between  them,  and  each  case  is  distinct,  depending  upon 
the  evidence  against  each  party.  It  is,  therefore,  not  necessary  to 
make  all  parties  who  may  more  or  less  have  joined  in  the  act  com- 
plained of."     Seddon  v.  Connell,  10  Sim.  81,  is  to  the  same  efifect. 

In  Story  on  Partnership,  i<  220,  after  speaking  of  the  general 
rule  that  there  is  no  contribution  between  joint  wrongdoers,  the 
author  says :  "But  the  rule  is  to  be  understood  according  to  its 
true  sense  and  meaning,  which  is,  where  the  tort  is  a  known  medi- 
tated wrong,  and  not  where  the  party  is  acting  under  the  suppo- 
sition of  the  entire  innocence  and  propriety  of  the  act,  and  the  tort 
is  merely  one  by  construction,  or  inference  of  law.  In  the  latter 
case,  although  not  in  the  former,  there  may  be  and  properly  is  a 
contribution  allowed  by  law  for  such  payments  and  expenses  between 
constructive  wrongdoers,  whether  partners  or  not."  The  case  of 
Adamson  v.  Jarvis,  cited  by  the  learned  commentators,  is  in  4  Bing. 
66,  in  which  Lord  Chief  Justice  Best,  after  noticing  Merryweather 
V.  Nixan,  says :  "The  case  of  Philips  v.  Biggs,"  Hardres,  164, 
(which  was  on  the  equity  side  of  the  Exchequer),  "was  never  de- 
cided ;  but  the  court  of  chancery  seemed  to  consider  the  case  of  two 
sheriffs  of  Middlesex,  where  one  had  paid  the  damages  in  an  action 
for  an  escape,  and  sued  the  other  for  contribution,  as  like  the  case 
of  two  joint  obligors.  From  the  inclination  of  the  court  in  this  last 
case,  and  from  the  concluding  part  of  Lord  Kenyon's  judgment  in 
Merryweather  v.  Nixan,  and  from  reason,  justice,  and  sound  policy, 
the  rule  that  wrongdoers  cannot  have  redress  or  contribution  against 
each  other  is  confined  to  cases  where  the  person  seeking  redress 
must  be  presumed  to  have  known  he  was  doing  an  unlawful  act." 

In  Betts  v.  Gibbins,  2  A.  &  E.  57,  Lord  Denman  said :  "The  case 
of  Merryweather  v.  Nixan,  8  T.  R.  186,  seems  to  me  to  have  been 
strained  beyond  what  the  decision  will  bear — the  present  case  is  an 
exception  to  the  general  rule.  The  general  rule  is,  that  between 
wrongdoers  there  is  neither  indemnity  nor  contribution.  The  ex- 
ception is  where  the  act  is  not  clearly  illegal  in  itself,  and  Merry- 
weather v.  Nixan  was  only  a  refusal  of  a  rule  nisi.  In  Adamson  v. 
Jarvis,  4  Bing.  66,  we  have  the  observations  of  a  learned  person 
familiar  with  commercial  law." 

A  promise  to  indemnify  against  an  act  not  known  to  the  promisee 
at  the  time  to  be  unlawful  is  valid.  Coventry  v.  Barton,  17  Johns. 
142;  Stone  V.  Hooker,  9  Cow.  154. 

In  Pearson  v.  Skelton,  i  M.  &  W.  504,  where  one  stage-coach  pro- 
prietor had  been  sued  for  the  negligence  of  a  driver,  and  damages 
had  been  recovered  against  him,  which  he  had  paid,  and  he  sought 
contribution  from  another  of  the  proprietors,  it  was  held  that  the 
rule  there,  no  contribution  between  joint  tort-feasors,  does  not  apply 


CONSTRAINT    BY    FAULT    OF   DEFENDANT. 

to  a  case  where  the  party  seeking  contribution  was  a  tort-feasor  only 
by  inference  of  law,  but  is  confined  to  cases  where  it  must  be  pre- 
sumed that  the  party  knew  he  was  committing-  an  unlawful  act. 
The  same  doctrine  was  maintained  in  Wooley  v.  Batte,  2  C.  &  P. 

417- 

These  cases  have  been  followed  in  this  court  in  Horbach's  Admin- 
istrators V.  Elder,  6  Harris  33.  "Here,"  said  Judge  Coulter,  "the 
plaintiff  and  defendant  are  in  aequali  jure.  The  plaintiff  has  ex- 
clusively borne  the  burden  which  ought  to  have  been  shared  by  the 
defendant,  who  therefore  ought  to  contribute  his  share." 

"Contribution,"  says  Lord  Chief  Baron  Eyre,  in  Deering  v.  Earl 
of  Winchelsea,  i  Cox  318,  "is  bottomed  and  fixed  on  general  prin- 
ciples of  natural  justice,  and  does  not  spring  from  contract." 

These  principles  rule  the  case  before  us.  The  parties  plaintiff 
and  defendant  are  two  municipal  corporations,  jointly  bound  to 
keep  this  bridge  in  repair.  These  bodies  can  act  only  by  their 
legally  constituted  agents,  their  commissioners,  who  examine  the 
structure  and  order  repair,  which  is  done.  They  erred  in  judgment, 
and  both  were  liable  for  the  conseqences  of  that  error,  and  one  hav- 
ing paid  the  whole  of  the  damages  is  entitled  to  contribution  from 
the  other. 

Judgment  reversed,  and  venire  de  novo  awarded. 


UNION  STOCK  YARDS  CO.  OF  OMAHA  v.  CHICAGO, 
BURLINGTON  &  QUINCY  R.  R. 

25  Supreme  Court  Reporter  (U.  S.)  226. — 1905. 

On  a  certificate  from  the  U.  S.  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit. 

Upon  this  certificate  the  circuit  court  of  appeals  propounds  the 
following  question : 

"Is  a  railroad  company  which  delivers  a  car  in  bad  order  to  a 
terminal  company,  that  is  under  contract  to  deliver  it  to  its  ultimate 
destination  on  its  premises  for  a  fixed  compensation,  to  be  paid  to 
it  by  the  railroad  company,  liable  to  the  terminal  company  for  the 
damages  which  the  latter  has  been  compelled  to  pay  to  one  of  its 
employes  on  account  of  injuries  he  sustained  while  in  the  customary 
discharge  of  his  duty  of  operating  the  car,  by  reason  of  the  defect 
in  it,  in  a  case  in  which  the  defect  is  discoverable  upon  reasonable 
inspection  ?" 

Mr.  Justice  Day. — We  take  it  that  this  inquiry  must  be  read  in 
the  light  of  the  statement  accompanying  it.  While  instruction  is 
asked  broadly  as  to  the  liability  of  the  railroad  company  to  the 
terminal  company,  for  damages  which  the  latter  has  been  compelled 
to  pay  to  one  of  its  own  employes  on  account  of  injuries  sustained, 


CONTRinUTION.  465 

it  is  doubtless  meant  to  limit  the  in(|uiry  to  cases  wherein  such  re- 
covery was  had  because  of  the  established  negligence  of  the  terminal 
company  in  the  performance  of  the  specific  duty  stated,  and  which 
it  owed  to  the  employe.  For  it  must  be  taken  as  settled  that  the 
terminal  company  was  guilty  of  negligence  after  it  received  the  car 
in  question,  in  failing  to  perform  the  duty  of  inspection  required  of 
it  as  to  its  own  employe.  The  case  referred  to  in  the  certificate 
(Union  Stock  Yards  Co.  v.  Goodwin,  57  Neb.  138,  'jy  N.  W.  357) 
is  a  final  adjudication  between  the  terminal  company  and  the  em- 
ploye, and  it  therein  appears  that  the  liability  of  the  company  was 
based  upon  the  defective  character  of  the  brake,  which  defect  a 
reasonably  careful  inspection  by  a  competent  inspector  would  have 
revealed,  and  it  was  held  that  in  permitting  the  employe  to  use  the 
car  without  discovering  the  defect  the  company  was  rendered  liable 
to  him  for  the  damages  sustained.  We  have,  therefore,  a  case  in 
which  the  question  of  the  plaintiff's  negligence  has  been  established 
by  a  competent  tribunal,  and  the  inquiry  here  is,  may  the  terminal 
company  recover  contribution,  or,  more  strictly  speaking,  indemnity, 
from  the  railroad  company  because  of  the  damages  which  it  has 
been  compelled  to  pay  under  the  circumstances  stated? 

Nor  is  the  question  to  be  complicated  by.  a  decision  of  the  liability 
of  the  railroad  company  to  the  employe  of  the  terminal  company, 
had  the  latter  seen  fit  to  bring  the  action  against  the  railroad  com- 
pany alone,  or  against  both  companies  jointly.  There  seems  to  be 
a  diversity  of  holding  upon  the  subject  of  the  railroad  company's 
liability  under  such  circumstances,  in  courts  of  high  authority. 

In  Moon  v.  Northern  P.  R.  Co.,  46  Minn.  106,  24  Am.  St.  Rep. 
194,  48  N.  W.  679,  and  Pennsylvania  R.  Co.  v.  Snyder,  55  Ohio  St. 
342,  60  Am.  St.  Rep.  700,  45  N.  E.  559,  it  was  held  that  a  railroad 
company  was  liable  to  an  employe  of  the  receiving  company  who  had 
been  injured  on  the  defective  car  while  in  the  employ  of  the  latter 
company  wdien,  under  a  traffic  arrangement  between  the  companies, 
the  delivering  company  had  undertaken  to  inspect  the  cars  upon  de- 
livery, and,  as  in  the  Moon  Case,  where  there  was  a  joint  inspection 
by  the  inspectors  of  both  companies.  This  upon  the  theory  that 
the  negligence  of  the  delivering  company,  when  it  was  bound  to  in- 
spect before  delivery,  was  the  primary  cause  of  the  injury,  notwith- 
standing the  receiving  company  was  also  guilty  of  an  omission  to 
inspect  the  car  before  permitting  an  employe  to  use  the  same. 

A  different  view  was  taken  in  the  case  of  Glynn  v.  Central  R.  Co., 
175  Mass.  510,  78  Am.  St.  Rep.  507,  56  N.  E.  698,  in  which  the 
opinion  was  delivered  by  Mr.  Justice  Holmes,  then  chief  justice  of 
Massachusetts,  in  which  it  was  held  that,  as  the  car,  after  coming 
into  the  hands  of  the  receiving  company,  and  before  it  had  reached 
the  place  of  the  accident,  had  crossed  a  point  at  which  it  should  have 
been  inspected,  the  liability  of  the  delivering  company  for  the  defect 
in  the  car,  which  ought  to  have  been  discovered  upon  inspection  by 
the  receiving  company,  was  at  an  end.  A  like  view  was  taken  by 
Woodruff's  Cases — 30 


466  CONSTRAINT    BY    FAULT    OF   DEFENDANT. 

the  supreme  court  of  Kansas  in  the  case  of  Missouri.  K.  &  T.  R.  Co. 
V.  Merrill,  65  Kan.  436,  59  L.  R.  A.  711,  93  Am.  St.  Rep.  287,  70 
Pac.  358,  reversing  its  former  decision  in  the  same  case  reported  in 
61  Kan.  671,  60  Pac.  819.  But  we  do  not  deem  the  determination 
of  this  question  necessary  to  a  decision  of  the  present  case. 

Coming  to  the  very  question  to  be  determined  here,  the  general 
principle  of  law  is  well  settled  that  one  of  several  wrongdoers  cannot 
recover  against  another  wrongdoer,  although  he  may  have  been  com- 
pelled to  pay  all  the  damages  for  the  wrong  done.  In  many  in- 
stances, however,  cases  have  been  taken  out  of  this  general  rule,  and 
it  has  been  held  inoperative  in  order  that  the  ultimate  loss  may  be 
visited  upon  the  principal  wrongdoer,  who  is  made  to  respond  for 
all  the  damages,  where  one  less  culpable,  although  legally  liable  to 
third  persons,  may  escape  the  payment  of  damages  assessed  against 
him  by  putting  the  ultimate  loss  upon  the  one  principally  responsible 
for  the  injury  done.  These  cases  have,  perhaps,  their  principal 
illustration  in  that  class  wherein  municipalities  have  been  held  re- 
sponsible for  injuries  to  persons  lawfully  using  the  streets  in  a  city, 
because  of  defects  in  the  streets  or  sidewalks  caused  by  the  negli- 
gence or  active  fault  of  a  property  owner.  In  such  cases,  where  the 
municipality  has  been  called  upon  to  respond  because  of  its  legal 
duty  to  keep  public  highways  open  and  free  from  nuisances,  a  re- 
covery over  has  been  permitted  for  indemnity  against  the  property 
owner,  the  principal  wrongdoer,  whose  negligence  was  the  real  cause 
of  the  injury. 

Of  this  class  of  cases  is  Washington  Gaslight  Co.  v.  District  of 
Columbia,  161  U.  S.  316,  40  L.  ed.  712,  16  Sup.  Ct.  Rep.  564,  in 
which  a  resident  of  the  city  of  Washington  had  been  injured  by  an 
open  gas  box,  placed  and  maintained  on  the  sidewalk  by  the  gas 
company,  for  its  benefit.  The  District  was  sued  for  damages,  and, 
after  notice  to  the  gas  company  to  appear  and  defend,  damages  were 
awarded  against  the  District,  and  it  was  held  that  there  might  be 
a  recovery  by  the  District  against  the  gas  company  for  the  amount 
of  damages  which  the  former  had  been  compelled  to  pay.  Many 
of  the  cases  were  reviewed  in  the  opinion  of  the  court,  and  the  gen- 
eral principle  was  recognized  that,  notwithstanding  the  negligence 
of  one,  for  which  he  has  been  held  to  respond,  he  may  recover  against 
the  principal  delinquent  where  the  oflfense  did  not  involve  moral 
turpitude,  in  which  case  there  could  be  no  recovery,  but  was  merely 
malum  proliibitum,  and  the  law  would  inquire  into  the  real  delin- 
quency of  the  parties,  and  place  the  ultimate  liability  upon  him 
whose  fault  had  been  the  primary  cause  of  the  injury.  The  same 
principle  has  been  recognized  in  the  court  of  appeals  of  the  state 
of  New  York  in  Oceanic  Steam  Nav.  Co.  v.  Campania  Trans- 
atlantica  Espanola,  134  N.  Y.  461,  30  Am.  St.  Rep.  685,  31  N.  E. 
897,  the  seconrl  proposition  of  the  syllabus  of  the  case  being: 

"Where,  therefore,  a  person  has  been  compelled,  by  the  judgment 
of  a  court  having  juriscliction,  to  pay  damages  caused  by  the  negli- 
gence of  another,  which  ought  to  have  been  paid  by  the  wrongdoer, 


CONTRIBUTION.  467 

he  may  recover  of  the  latter  the  amount  so  paid,  unless  he  was  a 
party  to  the  wrong  which  caused  the  damage." 

In  a  case  cited  and  much  relied  upon  at  the  bar  (Gray  v.  Boston 
Gaslight  Co.,  114  Mass.  149,  19  Am.  Rep.  324),  a  telegraph  wire 
was  fastened  to  the  plaintiff's  chimney  without  his  consent,  and,  the 
weight  of  the  wire  having  pulled  the  chimney  over  into  the  street, 
to  the  injury  of  a  passing  traveler,  an  action  was  brought  against 
the  property  owner  for  damages,  and  notice  was  duly  given  to  the 
gas  company,  which  refused  to  defend.  Having  settled  the  dam- 
ages at  a  figure  which  the  court  thought  reasonable,  the  property 
owner  brought  suit  against  the  gas  company,  and  it  was  held  liable 
In  the  opinion  the  court  said  : 

"When  two  parties,  acting  together,  commit  an  illegal  or  wrong- 
ful act,  the  party  who  is  held  responsible  in  damages  for  the  act 
cannot  have  indemnity  or  contribution  from  the  other,  because  both 
are  equally  culpable  or  participes  criminis,  and  the  damage  results 
from  their  joint  offense.  This  rule  does  not  apply  when  one  does 
the  act  or  creates  the  nuisance,  and  the  other  does  not  join  therein, 
but  is  thereby  exposed  to  liability  and  suffers  damage.  He  may  re- 
cover from  the  party  whose  wrongful  act  has  thus  exposed  him. 
In  such  case  the  parties  are  not  in  pari  delicto  as  to  each  other, 
though,  as  to  third  persons,  either  may  be  held  liable."^ 

In  a  later  case  in  Massachusetts  (Boston  Woven  Hose  &  Rubber 
Co.  V.  Kendall,  178  Mass.  232,  51  L.  R.  A.  781,  86  Am.  St.  Rep. 
478'  59  N-  E.  657),  it  was  held  that  a  manufacturer  of  an  iron 
boiler  known  as  a  vulcanizer,  which  had  been  furnished  upon  an 
order  which  required  a  boiler  which  would  stand  a  pressure  of  100 
pounds  to  the  square  inch,  which  order  was  accordingly  accepted, 
the  manufacturer  undertaking  to  make  the  boiler  in  a  good  and 
workmanlike  manner,  but  which,  because  of  a  defect,  in  that  the 
hinge  of  the  door  was  constructed  in  such  a  way  that  it  did  not 
press  tight  enough  against  the  face  of  the  boiler  to  stand  a  pressure 
of  75  pounds,  at  which  pressure  the  packing  blew  out  and  allowed 
the  naptha  vapor  to  escape,  was  liable  for  the  damages  which  the 
hose  company  had  been  compelled  to  pay  to  one  of  its  employes, 
injured  by  the  accident,  although  the  defect  might  have  been  dis- 
covered upon  reasonable  inspection  by  the  hose  company.  In  that 
case  the  boiler  was  sold  upon  a  warranty.  As  was  said  by  Mr.  Chief 
Justice  Holmes,  delivering  the  opinion  of  the  court : 

"The  very  purpose  of  the  warranty  was  that  the  boiler  should  be 
used  in  the  plaintiff's  works  with  reliance  upon  the  defendant's 
judgment  in  a  matter  as  to  which  the  defendants  were  experts  and 
Hie  plaintiff  presumably  was  not.  Whether  the  false  warranty  be 
called  a  tort  or  a  breach  of  contract,  the  consequences  which  ensued 
must  be  taken  to  have  been  contemplated  and  were  not  too  remote. 
The  fact  that  the  reliance  was  not  justified  as  toward  the  men  does 
not  do  away  with  the  fact  that  the  defendants  invited  it,  with  notice 

^Accord,  Churchill  v.  Holt,  127  Mass.  165   (1879). 


468  CONSTRAINT   BY   FAULT    OF   DEFENDANT. 

of  what  might  be  the  consequences  if  it  should  be  misplaced,  and 
there  is  no  policy  of  the  law  opposed  to  their  being  held  to  make 
their  representations  good." 

Other  cases  might  be  cited  which  are  applications  of  the  excep- 
tion engrafted  upon  the  general  rule  of  noncontribution  among 
wrongdoers,  holding  that  the  law  will  inquire  into  the  facts  of  a 
case  of  the  character  shown,  with  a  view  to  fastening  the  ultimate 
liability  upon  the  one  whose  wrong  has  been  primarily  responsible 
for  the  injury  sustained.  In  the  present  case  there  is  nothing  in  the 
facts  as  stated  to  show  that  any  negligence  or  misconduct  of  the 
railroad  company  caused  the  defect  in  the  car  which  resulted  in  the 
injury  to  the  brakeman.  That  company  received  the  car  from  its 
owner,  the  Hammond  Packing  Company,  whether  in  good  order  or 
not  the  record  does  not  disclose.  It  is  true  that  a  railroad  company 
owes  a  duty  of  inspection  to  its  employes  as  to  cars  received  from 
other  companies  as  well  as  to  those  which  it  may  own.  Baltimore 
&  P.  R.  Co.  v.  Mackey,  157  U.  S.  73,  39  L.  ed.  624,  15  Sup.  Ct. 
Rep.  491.  But  in  the  present  case  the  omission  of  duty  for  which 
the  railroad  company  was  sought  to  be  held  was  the  failure  to  inspect 
the  car  with  such  reasonable  diligence  as  would  have  discovered  the 
defect  in  it.  It  may  be  conceded  that,  the  railroad  company  having 
a  contract  with  the  terminal  company  to  receive  and  transport  the 
cars  furnished,  it  was  bound  to  use  reasonable  diligence  to  see  that 
the  cars  were  turned  over  in  good  order,  and  a  discharge  of  this 
duty  required  an  inspection  of  the  cars  by  the  railroad  company  upon 
delivery  to  the  terminal  company.  But  that  the  terminal  company 
owed  a  similar  duty  to  its  employes,  and  neglected  to  perform  the 
same,  to  the  injury  of  an  employe  has  been  established  by  the  de- 
cision of  the  supreme  court  of  Nebraska  already  referred  to. 

The  case  then  stands  in  this  wise :  The  railroad  company  and  the 
terminal  company  have  been  guilty  of  a  like  neglect  of  duty  in  failing 
to  properly  inspect  the  car  before  putting  it  in  use  by  those  who 
might  be  injured  thereby.  We  do  not  perceive  that,  because  the 
duty  of  inspection  was  first  required  from  the  railroad  company,  that 
the  case  is  thereby  brought  within  the  class  which  hold  the  one 
primarily  responsible,  as  the  real  cause  of  the  injury,  liable  to  an- 
other less  culpable,  who  may  have  been  held  to  respond  for  damages 
for  the  injury  inflicted.  It  is  not  like  the  case  of  the  one  who  creates 
a  nuisance  in  the  public  streets ;  or  who  furnishes  a  defective  dock ; 
or  the  case  of  a  gas  company,  where  it  created  the  condition  of 
unsafety  by  its  own  wrongful  act ;  or  the  case  of  the  defective  boiler, 
which  blew  out  because  it  would  not  stand  the  pressure  warranted 
by  the  manufacturer.  In  all  these  cases  the  wrongful  act  of  the  one 
held  finally  liable  created  the  unsafe  or  dangerous  condition  from 
which  the  injury  resulted.  The  principal  and  moving  cause,  result- 
ing in  the  injury  sustained,  was  the  act  of  the  first  wrongdoer,  and 
the  other  has  been  held  liable  to  third  persons  for  failing  to  discover 
or  correct  the  defect  caused  by  the  positive  act  of  the  other. 

In  the  present  case  the  negligence  of  the  parties  has  been  of  the 


DURESS.  469 

same  character.  Both  the  railroad  company  and  the  terminal  com- 
pany failed,  by  proper  inspection,  to  discover  the  defective  brake. 
The  terminal  company,  because  of  its  fault,  has  been  held  liable  to 
one  sustaining  an  injury  thereby.  We  do  not  think  the  case  comes 
within  that  exceptional  class  which  permits  one  wrongdoer  who  has 
been  mulcted  in  damages  to  recover  indemnity  or  contribution  from 
another. 

For  the  reasons  stated,  the  question  propounded  will  be  answered 
in  the  negative. 


b.  Duress  by  Defendant. 
i.  Duress  of  Property. 

I.    PERSONAL  PROPERTY. 

CHASE  v.  DWINAL. 

7  Greenl.  (Me.)  134. — 1830. 

Assumpsit  for  money  had  and  received. 

The  plaintiff  was  conducting  his  raft  down  the  Penobscot  river, 
and  when  he  came  near  the  boom  of  the  defendant,  which  was 
erected  under  a  charter  from  the  state,  he  was  unable  to  pass  it 
through  the  passageway  left  for  that  purpose ;  and  by  force  of  the 
wind  and  current  it  was  driven  eastward  of  the  passage,  and  stopped 
by  the  defendant's  boom.  The  plaintiff,  with  other  assistance,  im- 
mediately made  exertions  to  free  it  from  the  boom  and  conduct  it 
through  the  passage,  which  in  two  or  three  hours  was  effected. 
One  of  the  defendant's  hired  men,  who  assisted  the  plaintiff,  de- 
manded seventy-five  cents  for  this  service,  which  the  plaintiff  re- 
fused to  pay.  Afterwards  the  defendant  demanded  of  the  plaintiff 
six  dollars  and  forty  cents,  being  the  regular  boomage  for  the  raft, 
which  the  plaintiff  refusing  to  pay,  the  defendant  stopped  and  de- 
tained the  raft  till  the  plaintiff  paid  the  sum  demanded ;  to  recover 
which  this  action  was  brought.  The  jury  having  found  for  the 
plaintiff,  the  defendant  filed  exceptions. 

Weston,  J. — The  defendant  claims,  in  behalf  of  the  Penobscot 
boom  corporation,  a  right  to  receive  and  retain  as  toll,  the  money 
attempted  to  be  reclaimed  in  this  action.  If  he  has  such  a  right, 
the  action  cannot  be  supported.  The  act,  establishing  this  corpora- 
tion, grants  them  a  toll  for  stopping  and  securing  the  several  kinds 
of  timber  mentioned  therein,  whether  drifted  or  rafted  down  the 
river.  *  *  *  *  \Yg  j^j-g  ^g]]  satisfied  that  the  act  imposes  the 
liability  to  pay  toll  upon  the  owners  of  timber,  for  the  security  and 
preservation  of  their  property ;  and  that  it  does  not  attach  to  rafts, 
which  are  intended  to  pass  down  the  river,  where  the  use  and  se- 


470  DURESS. 

curity  of  the  boom  is  not  sought  or  desired.  In  the  second  section 
of  the  act  it  is  expressly  enjoined  upon  the  corporation  so  to  con- 
struct the  boom  as  to  admit  the  passage  of  rafts  and  boats. 

If  the  defendant  was  not  entitled  to  boomage,  it  is  secondly  con- 
tended that  the  payment,  being  voluntary,  cannot  be  reclaimed.   *   '^'^ 

It  has  been  laid  down  as  a  general  principle,  that  an  action  for 
money  had  and  received  lies  for  money  got  through  imposition, 
extortion,  oppression,  or  an  undue  advantage  taken  of  the  party's 
situation.  Ivloses  v.  Macferlan,  2  Burr.  1005 ;  Smith  v.  Bromley, 
cited  in  Doug.  696.  In  Astley  v.  Reynolds,  2  Strange  916,  an  action 
was  sustained  to  recover  money,  extorted  by  a  pawnbroker,  for  the 
redemption  of  plate;  notwithstanding  it  was  objected  that  the  pay- 
ment was  voluntary.  In  Hall  v.  Schultz,  4  Johns.  240,  Spencer, 
J.,  says,  this  case  has  been  overruled  by  Lord  Kenyon  in  Knibbs  v. 
Hall,  [i  Esp.  84.]  There  the  plaintiff  had  paid,  as  he  insisted, 
five  guineas  more  rent  than  could  have  been  rightfully  claimed  of 
him,  to  avoid  a  distress  which  was  threatened.  Lord  Kenyon  held 
this  to  be  a  voluntary  payment,  and  not  upon  compulsion ;  as  the 
party  might  have  protected  himself  from  a  wrongful  distress  by  re- 
plevin. His  lordship  does  not  advert  to  the  case  of  Astley  v.  Reyn- 
olds ;  and  subsequently,  in  Cartwright  v.  Rowley  [2  Esp.  723]  before 
cited,  he  refers  with  approbation  to  an  action  witiiin  his  recollection^ 
for  money  had  and  received,  brought  against  the  steward  of  a  manor, 
to  recover  money  paid  for  producing  at  a  trial  some  deeds  and  court 
rolls,  for  which  he  had  charged  extravagantly.  It  was  urged  that 
the  payment  was  voluntary ;  but  it  appearing  that  the  party  could 
not  do  without  the  deeds,  and  that  the  money  was  paid  through  the 
iirgency  of  the  case,  the  action  was  sustained.  Had  the  distress, 
threatened  in  Knibbs  v.  Hall,  been  actually  made,  money  paid  to 
relieve  the  goods,  could  not  have  been  recovered  in  assumpsit,  upon 
a  principle  which  will  be  subsequently  noticed. 

Hall  V.  Schultz  [4  Johns.  240],  cited  by  counsel  for  the  defendant, 
was  commented  upon  in  Gilpatrick  v.  Sayward,  5  Greenl.  465. 
Neither  of  these  actions  could  be  sustained  without  a  violation  of 
the  statute  of  frauds ;  and  upon  this  ground  they  were  defeated. 
In  Stevenson  v.  Mortimore,  Cowper  805,  the  plaintiff  recovered,  in 
an  action  for  money  had  and  received,  an  excess  of  fees  by  him  paid 
to  a  custom-house  officer,  to  obtain  a  document  he  was  under  the 
necessity  of  procuring.  In  Ripley  v.  Gelston,  9  Johns.  201,  the  plain- 
tiff recovered  in  assumpsit  of  the  collector  of  New  York,  money  ille- 
gally claimed  by  him  as  tonnage  and  light  money ;  and  which  die 
plaintiff  paid  to  obtain  a  clearance  of  his  vessel.  In  Clinton  v. 
Strong,  9  Johns.  370,  money  was  reclaimed,  which  had  been  wrong- 
fully exacted  by  the  clerk  of  the  district  court,  for  the  redelivery 
of  property  which  had  been  seized.  In  the  foregoing  cases  the 
payments  were  not  deemed  voluntary,  but  extorted  and  compulsory. 

It  may  be  insisted  that  trespass  or  replevin  would  have  been  more 
appropriate  remedies  for  the  plaintiff.  Either  might  doubtless  have 
been  maintained ;  and  where  they  are  specific  remedies,  provided  by 


DURESS   OF    TROrCRTY.  47I 

law  for  a  peculiar  class  of  injuries,  assumpsit  cannot  be  substituted. 
It  was  upon  this  ground  that  Lindon  v.  Hooper,  Cowper  414,  was 
decided.  Cattle  damage  feasant  had  been  wrongfully  distrained, 
money  had  been  paid  for  their  liberation, and  an  action  for  money  had 
and  received  brought  to  recover  it.  The  action  did  not  prevail.  The 
court  place  their  opinion  expressly  on  the  nature  of  the  remedy  by 
distress,  which  they  say  is  singular,  and  depends  upon  a  peculiar  sys- 
tem of  strict  positive  law.  That  the  distrainor  has  a  certain  course, 
prescribed  to  him,  which  he  must  take  care  formally  to  pursue ;  and 
that  the  law  has  provided  two  precise  remedies  for  the  owner  of  the 
cattle,  which  may  happen  to  be  wrongfully  distrained,  replevin  and, 
after  paying  the  sum  claimed,  trespass,  in  which  such  payment  must 
be  specially  averred  and  set  forth  as  an  aggravation  of  the  trespass. 
Then  are  to  follow  pleadings,  which  put  directly  in  issue  the  validity 
of  the  distress.  From  a  case  of  this  peculiar  character,  decided  upon 
this  special  ground,  no  general  principle  can  be  extracted  which  can 
govern  cases,  where  the  law  of  distress  does  not  apply. ^ 

Irving  V.  Wilson,  4  D.  &  E.  485,  is  a  case  strongly  resembling  the 
one,  now  before  the  court.  A  revenue  officer  had  seized  goods,  not 
liable  to  seizure,  but  demanded  money  for  their  release,  which  the 
owner  paid.  This  was  recovered  back  in  an  action  for  money  had 
and  received.  It  was  held  to  be  a  payment  not  voluntary,  but  by 
coercion,  the  defendant  having  the  plaintiff  in  his  power,  by  stopping 
his  goods.  It  does  not  appear  to  have  occurred  to  the  counsel  or  the 
court  that  it  was  a  case  which  was  affected  by  the  decision  in  Lindon 
V.  Hooper. 

Trespass  would  have  been  an  appropriate  remedy  for  the  unlawful 
seizure ;  but  after  payment,  assumlysit  was  also  appropriate.  The 
money  was  extorted.  The  payment  was  not  voluntary  in  any  fair 
sense  of  that  term;  and  the  defendant  had  no  just  title  to  retain  it. 
If  money  is  voluntarily  paid  to  close  a  transaction,  without  duress 
either  of  the  person  or  goods,  the  legal  maxim,  volenti  non  fit  injuria, 
may  be  allowed  to  operate.  It  would  be  a  perversion  of  the  maxim 
to  apply  it  for  the  benefit  of  a  party,  who  had  added  extortion  to 
unjustifiable  force  and  violence. 

^  In  Colvvell  V.  Peden,  3  Watts  (Pa.)  327  (1834),  the  landlord  issued  a  war- 
rant of  distress  in  good  faith  to  recover  rent  alleged  to  be  in  arrear,  though 
none  was  due.  The  tenant,  to  relieve  his  goods  from  distress,  paid  the  sum 
claimed  and  then  sued  in  this  action  of  assumpsit  to  recover  back  the  money. 
The  court  said,  in  conclusion  :  "There  seems,  therefore,  to  be  much  force  in 
the  remark  of  Mr.  Starkie  [on  Evidence]  that  'the  plaintiff  cannot  substitute 
this  form  of  action  for  the  more  appropriate  ones  of  trespass  or  replevin, 
where  they  are  the  specific  ones  provided  by  the  law  for  the  particular  griev- 
ance.' In  either  of  these  the  question  may  be  tried  as  advantageously  for  the 
tenant  as  in  an  action  of  assumpsit ;  nor  is  there  any  reason  why  he  should 
be  suffered  to  turn  a  cause  of  action  essentially  local  into  a  transitory  one 
by  changing  the  form  of  the  remedy  and  shifting  the  position  of  the  parties 
to  the  issue.  This  last  consideration  was  decisive  of  the  form  of  the  action 
in  Mather  v.  Trinity,  3  Serg.  &  Rawle  500;  and  would,  of  itself,  be  decisive 
of  it  here.  On  principle,  as  well  as  authority,  then,  a  tenant  cannot  main- 
tain assumpsit  for  money  paid  to  relieve  his  goods  from  distress." 


(472.1  DURESS. 

The  party  injured  often  finds  a  convenience,  in  being  allowed  to 
select  one  of  several  concurrent  remedies.  In  the  case  under  con- 
sideration, replevin  would  have  restored  the  property  unlawfully 
seized.  But  to  procure  a  writ,  and  an  officer  to  serve  it,  would  have 
occasioned  delay,  which  might  have  subjected  the  plaintiff  to  greater 
loss  than  the  payment  of  the  money  demanded.  Besides,  he  must 
have  given  a  bond  to  the  officer  to  prosecute  his  suit ;  and  he  might 
meet  with  difficulty  in  obtaining  sufficient  sureties.  Had  he  brought 
trespass,  several  months  might  have  elapsed,  before  he  could  have 
obtained  a  final  decision ;  and  this  delay  might  have  been  attended 
with  serious  inconvenience.  By  the  course  pursued,  these  difficulties 
were  avoided.  Nor  is  the  defendant  placed  by  it  in  any  worse  situ- 
ation. He  has  been  permitted  to  urge  in  his  defense  any  claim  of 
right  under  the  corporation,  and  he  is  liable  to  pay  only  the  money 
actually  received  by  him ;  the  plaintiff  waiving,  by  the  form  of  the 
action,  damages  for  the  illegal  seizure.  We  perceive  no  objection 
in  principle  to  the  form  of  the  action ;  nor  do  we  find  it  unsupported 
by  precedent  and  authority.  Exceptions  overruled.^ 


SCHOLEY,  Ex'r,  v.  MUMFORD  et  al. 

60  N.  Y.  498.— 1875. 

Action  to  recover  back  moneys  paid  under  the  circumstances 
stated  in  the  opinion.  Plaintiff  and  G.  H.  Mumford  were  executors 
of  the  will  of  Elizabeth  Scholey ;  defendants  were  Mr.  Mumford's 
executors. 

Rapallo,  J. — *     *     *     *     The  defendants  had  in  their  possession 

'In  Cobb  V.  Charter,  32  Conn.  358,  366  (1865),  the  court  says:  "The  plain- 
tiff was  a  mechanic.  His  chest  of  tools,  which  are  held  by  statute  sacred  even 
from  the  touch  of  a  creditor,  were  seized  by  the  defendant.  He  refused  to 
deliver  them  to  the  owner  on  demand  except  upon  his  paying,  without  the 
slightest  obligation,  the  debt  of  another  person.  The  plaintiff  was  thus  de- 
prived of  the  means  of  his  support.  Thereupon  he  left  the  money  with  Strat- 
ton  to  be  paid  to  the  defendant  when  the  chest  should  be  sent.  Stratton  so 
informed  the  defendant,  who  at  once  sent  the  chest  and  then  received  the 
money.  In  view  of  such  extortion,  oppression,  and  taking  an  undue  advan- 
tage of  the  plaintiff's  situation,  it  seems  somewhat  bold  in  the  defendant  to 
come  into  a  court  of  justice  and  assert  that  the  payment  was  voluntary." 

In  Harmony  v.  Bingham,  12  N.  Y.  99,  112  (1854),  the  court  says:  "The 
property  consisted  of  merchandise  of  great  value,  which  had  been  transported 
to  a  remote  part  of  the  country,  in  reference  to  a  commercial  adventure  m 
Mexico.  Every  precaution  had  been  taken  by  the  plaintiff  to  procure  its 
transportation  in  the  shortest  practicable  period,  and  it  was  essential  to_  his 
interest  that  he  should  obtain  possession  of  it  immediately  on  its  arrival. 
The  defendants  refused  tn  deliver  the  property  without  the  payment  of  a 
greater  simi  for  freight  than  they  could  legally  claim.  The  plaintiff  protested 
agnin'^t  the  payment  of  what  he  considered  an  illegal  and  extortionate  charge, 
and  finally,  from  the  necessity  of  the  case,  and  for  the  purpose  of  obtaining 
possession  of  his  properly,  he  paid  the  illegal  demand.  T  think  that  a  pay- 
ment, under  such  circumstances,  should  not  be  considered  as  voluntary." 


DURESS   OF    PROPERTY.  473 

$85,000  of  bonds  belonging  to  the  estate  of  which  the  plaintiff  was 
surviving  executor.  These  bonds  had  come  to  the  possession  of  the 
defendants  through  George  H.  Mumford,  deceased,  who  was,  in  his 
life,  the  co-executor,  with  the  plaintiff,  of  the  will  of  Mrs.  Scholey. 
The  complaint  alleges  that  the  defendants  refused  to  deliver  these 
bonds  to  the  plaintiff  until  the  sum  in  controversy,  which  was  alleged 
by  the  defendants  to  be  due  to  the  estate  of  George  H.  Mumford, 
deceased,  for  commissions,  was  paid  to  them,  and  that  this  claim 
was  disputed  by  the  plaintiff.  The  parties  appeared  before  the  surro- 
gate, who,  in  the  first  instance,  decided  that  the  defendants  were  en- 
titled to  the  commissions.  The  plaintiff  then  paid  them,  and  after- 
ward applied  to  the  surrogate  for  a  rehearing  upon  the  question,  and 
upon  such  rehearing  the  surrogate  reversed  his  former  decision. 
The  complaint  alleges  that  the  plaintiff,  although  advised  that  the 
first  decision  of  the  surrogate  was  erroneous,  nevertheless  paid  the 
sum  claimed,  in  order  to  obtain  the  delivery  of  the  bonds  to  him. 
The  defendants,  in  their  answer,  do  not  deny  the  allegation  of  the 
complaint  that  they  refused  to  deliver  up  the  bonds  except  upon  pay- 
ment of  the  commissions,  but,  on  the  contrary,  expressly  admit  "that 
they  would  not  have  delivered  up  the  bonds  except  upon  the  terms 
aforesaid,"  i.  e.,  the  payment  of  the  commissions.  The  plaintiff  testi- 
fied that  he  was  anxious  to  get  the  bonds ;  that  the  defendants  had, 
after  the  death  of  George  H.  Mumford,  declined  to  give  up  the 
bonds,  on  the  ground  that  commissions  were  due.  The  evidence  is 
very  meager ;  but  I  think  it  sufficiently  appeared,  from  the  acts  of 
the  parties  and  the  admission  in  the  answer,  that  this  claim  for  com- 
missions was  disputed,  and  was  yielded  to  simply  as  a  means  of  ob- 
taining possession  of  the  bonds  to  which  the  plaintiff  was  entitled, 
and  which  the  defendants  withheld  from  him  for  the  purpose  of  co- 
ercing payment  of  the  commissions. 

To  constitute  a  voluntary  payment  the  party  paying  must  have 
had  the  freedom  of  exercising  his  will.  When  he  acts  under  any 
species  of  compulsion  the  payment  is  not  voluntary.  If  a  party  has 
in  his  possession  goods,  or  other  property,  belonging  to  another,  and 
refuses  to  deliver  such  property  to  that  other  unless  the  latter  pays 
him  a  sum  of  money  which  he  has  no  right  to  receive,  and,  in  order 
to  obtain  possession  of  his  property,  he  pays  that  sum,  the  money  so 
paid  is  a  payment  made  by  compulsion,  and  may  be  recovered  back. 
(Per  Bayley,  J.,  Shaw  v.  Woodcock,  7  B.  &  C.  73.)  This  has  been 
frequently  decided.  Where  a  pawnbroker  refused  to  deliver  plate 
pawned,  except  upon  payment  of  excessive  interest,  and  the  owner 
paid  it  to  obtain  his  property,  he  was  allowed  to  recover  back  the 
excess.  Astley  v.  Reynolds,  2  Stra.  915.  An  action  will  lie  to  re- 
cover back  money  paid  to  release  goods  wrongfully  detained  on  a 
claim  of  lien :  Ashmole  v.  Wainwright,  2  A.  &  E.  n.  s.  737 ;  Har- 
mony v.  Bingham,  12  N.  Y.  109,  116;  or  money  wrongfully  exacted 
by  a  corporation  as  a  condition  permitting  a  transfer  of  stock.  Bates 
V.  N.  Y.  Ins.  Co.,  3  Johns.  Gas.  238.  The  cases  to  this  effect  are 
numerous.    In  all  these  cases  the  payment  is  regarded  as  compulsory, 


474  DURESS. 

and  not  voluntary.  I  think  the  case  at  bar  falls  within  the  principle 
of  these  decisions.  The  amount  of  property  was  very  large  com- 
pared with  the  sum  exacted ;  and,  from  the  conduct  of  the  plaintiff, 
it  may  well  be  inferred  that  he  preferred  to  pay  it  and  take  the 
chances  of  recovering  it  back,  rather  than  to  incur  the  hazard  of  hav- 
ing so  large  an  amount  of  property  in  the  hands  of  the  defendants. 

The  claim  of  the  defendants,  that  after  the  surrogate  had  decided 
that  the  defendants  were  entitled  to  the  commissions,  the  plaintiff 
gave  up  the  controversy,  and  consented  to  abide  by  the  decision,  is 
not  sustained  by  the  facts.  The  uncontroverted  allegations  of  the 
complaint,  that  the  defendants  refused  to  deliver  the  bonds  unless 
the  commissions  were  paid ;  and  that,  after  the  first  decision  of  the 
surrogate,  the  plaintiff,  although  advised  that  the  decision  was  er- 
roneous, did,  nevertheless,  pay  them,  in  order  to  have  the  bonds  de- 
livered up  to  him,  coupled  with  the  steps  which  were  very  soon  after- 
ward taken  by  the  plaintiff  to  obtain  a  reversal  of  the  decision  of 
the  surrogate ;  and  the  allegations  in  the  answer,  that,  after  the  first 
decision,  the  defendants  notified  the  plaintiff  that  they  would  deliver 
up  the  bonds  on  payment  of  the  amount  claimed  by  them,  and  that 
they  would  not  have  delivered  up  the  bonds  except  upon  the  terms 
aforesaid,  sufficiently  define  the  positions  of  the  parties,  and  show 
that  the  payment  was  not  the  free  and  voluntary  act  of  the  plaintiff ; 
but  that  he  had  no  choice,  and  was  compelled  to  submit  to  the  de- 
mand in  order  to  obtain  immediate  possession  of  the  bonds. 

The  judgment  should  be  reversed,  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  concur ;  except  Miller,  J.,  dissenting. 

Judgment  reversed.^ 

^This  case  came  again  to  the  court  of  appeals  in  72  N.  Y.  578  (1878),  and 
was  again  decided  for  the  plaintiff,  but  upon  the  ground  stated  as  follows  by 
the  court :  "We  think  the  case  is  with  the  plaintiff  on  the  ground  now  to  be 
stated.  The  original  decision  of  the  surrogate  was  doubtless  erroneous,  and 
having  been  subsequently  reversed  and  set  aside,  the  plaintiff  was  then  en- 
titled to  recover  the  money  paid  under  the  erroneous  order.  In  Clark  v.  Pin- 
ney  (6  Cow.  299),  the  court  says:  'That  this  action  (indebitatus  assumpsit) 
lies  in  all  cases  where  the  defendant  has  in  his  hands  money  which,  ex  aequo 
et  bono,  belongs  to  the  plaintiff.  When  money  is  collected  upon  an  erroneous 
judgment,  which,  subsequent  to  the  payment  of  the  money  is  reversed,  the 
legal  conclusion  is  irresistible  that  the  money  belongs  to  the  person  frorn 
whom  it  was  collected ;  of  course,  he  is  entitled  to  have  it  returned  to  him.' 
The  same  principle  is  recognized  in  subsequent  cases.  Maghee  v.  Kellogg, 
24  Wend.  32 ;  Garr  v.  Martin,  20  N.  Y.  306." 


DURESS   OF    PROPERTY.  475 

RICHMOND  ET  AL.  V.  UNION  STEAMBOAT  CO. 

87  N.  Y.  240.— 1881. 

Earl,  J. — On  the  ist  day  of  October,  1875,  the  agent  of  the  plain- 
tiffs, at  Toledo,  shipped  on  board  the  propeller  "Jay  Gould,"  which 
was  owned  by  defendant,  a  common  carrier,  consigned  to  the  plain- 
tiffs at  Buffalo,  seven  thousand  bushels  of  wet  wheat.  There  was 
also  shipped  upon  the  propeller  and  consigned  to  other  parties  at 
Buffalo,  upwards  of  twenty  thousand  bushels  of  wheat.  The  pro- 
peller went  to  Buffalo  and  discharged  all  the  wheat  into  the  Niagara 
elevator,  and  refused  to  discharge  plaintiffs'  wheat,  upon  their  re- 
quest, into  the  Richmond  elevator.  After  plaintiffs'  wheat  was  dis- 
charged at  the  Niagara  elevator,  in  order  to  obtain  the  same  so  as 
to  place  it  in  the  Richmond  elevator,  they  were  required  by  the  de- 
fendant's agent  to  pay  the  freight,  to-wit,  $183.66,  and  also  incurred 
expense  to  the  amount  of  $80.75  ^^  removing  the  wheat  to  the  Rich- 
mond elevator.  The  plaintiff's  claim  that  the  defendant  did  not 
earn  freight  by  delivering  the  wheat  into  the  Niagara  elevator,  but 
that  they  were  obliged  to  pay  the  freight  under  duress,  in  order  to 
procure  the  wheat,  and  this  action  was  brought  to  recover  the  amount 
paid  for  freight,  as  well  as  the  expense  of  the  removal  of  the 
wheat.*     *     *     * 

Upon  the  question,  then,  of  the  defendant's  liability,  we  think  no 
error  was  committed  in  the  court  below.  But  we  are  of  the  opinion 
that  the  plaintiffs  should  not  have  recovered  the  freight  paid.  As 
the  case  now  stands,  the  defendant  has  been  put  to  the  expense  of 
carrying  and  delivering  the  grain  into  the  Niagara  elevator  without 
any  compensation  whatever.  This  is  certainly  unjust  and  unwar- 
ranted. Either  the  plaintiffs  should  recover  the  freight  paid  only  on 
the  ground  that  that  was  paid  under  duress  when  it  was  not  due  to  the 
defendant,  or  they  should  recover  what  it  cost  them  to  complete  the 
defendant's  contract.  We  are  of  opinion  that  the  latter  is  the  most 
just  and  equitable  rule.  That  gives  the  plaintiffs  precisely  what 
they  would  have  had  if  the  contract  had  been  performed,  as  they 
claim  it  should  have  been.  They  took  the  grain  at  the  Niagara  ele- 
vator and  paid  the  entire  freight  stipulated.  Then  they  caused  the 
grain  to  be  carried  and  placed  in  the  Richmond  elevator,  and  for 
that  incurred  an  expense  of  $80.75.  '^"'^^  that  amount  will  furnish 
them  a  full  indemnity  for  the  defendant's  breach  of  contract. 

The  judgment  below  must,  therefore,  be  modified  by  striking 
therefrom  $183.66,  and  the  interest  thereon,  and  as  thus  modified,  the 
judgment  should  be  affirmed,  without  costs  of  appeal,  to  either  party 
in  this  court. 

All  concur.  Judgment  accordingly. 


(^ 


DURESS. 


iVv 


DE  LA  CUESTA  v.  INSURANCE  CO.  OF  NORTH  AMERICA. 
136  Pa.  St.  62. — 1890. 

Assumpsit  against  the  president  and  directors  of  the  Insurance 
Company  of  North  America,  to  recover  back  the  sum  of  $7,000, 
paid  by  the  plaintiff  to  the  defendant  company  under  protest. 

The  stockholders  of  the  North  American  Insurance  Company  re- 
solved that  it  would  be  advisable  to  increase  their  capital  stock.  By 
the  resolution  the  stock  was  to  be  increased  one-half.  That  is  to 
say,  for  every  two  shares  one  was  to  be  issued.  Those  shares  were 
to  be  issued  as  being  of  the  par  value  of  the  stock  of  $10  per  share ; 
that  amount  to  be  paid  by  the  persons  who  subscribed  for  it ;  the 
effect  of  which  would  be  to  add  to  the  capital  stock  of  the  company 
$1,000,000.  A  majority  of  the  stockholders  were  of  the  opinion  that 
a  still  further  increase  of  the  assets  of  the  company  was  advisable. 
They  therefore  desired  that  the  right  to  subscribe  for  an  additional 
one  hundred  thousand  shares  at  $10  per  share  should  be  on  condi- 
tion that,  in  exercising  it,  whoever  subscribed  $10  for  one  of  the 
new  shares  of  the  stock  should  also  pay  $10  for  the  privilege  of  be- 
ing admitted  to  the  new  subscription.  Under  the  ruling  of  the  su- 
preme court,  this  condition  was  illegal. 

Under  these  circumstances,  the  new  stock  was  issued  and  scrip  was 
to  be  given  for  it,  and  any  man  who  came  forward  and  paid,  as  the 
payments  fell  due,  at  the  rate  of  $10  for  each  share,  and  who,  after 
having  made  those  payments,  continued  to  pay  $10  for  the  privilege 
of  buying  a  share  and  becoming  a  stockholder,  would  become  en- 
titled to  his  proportion  of  these  new  shares  of  stock.  If,  however, 
he  did  not  comply  with  all  these  conditions,  including  the  condition 
which  required  him  to  pay  $10  for  the  privilege,  he  would  forfeit 
his  right  to  the  new  stock,  and,  moreover,  that  stock  would  be  sold 
to  the  highest  bidder  and  acquired  by  third  persons,  which  would 
introduce  a  new  element  into  the  company. 

Under  these  circumstances,  the  plaintiff  paid  the  $10  which  were 
necessary  to  buy  the  stock,  and  the  $10  which  were  necessary  to  en- 
title him  to  the  privilege  of  buying,  declaring  that  he  did  it  under 
protest. 

Mr.  Chief  Justice  Paxson. — *  *  *  '■'  The  only  important 
question  presented  by  this  record  is  the  legal  effect  of  payment  under 
protest.  The  plaintiff  was  entitled,  under  Cunningham's  Appeal, 
supra^  to  subscribe  for  the  new  stock  at  par.  The  company  re- 
quired him  to  agree  to  pay  an  additional  sum  at  a  future  time  fof 
the  privilege  of  subscribing.  This  bonus,  as  it  was  called,  was  to 
be  arldcd  to  the  surplus  fund.  This,  however,  is  not  material.  He 
signed  the  contract  to  pay  the  additional  sum,  under  protest,  and 

'  108  Pa.  547. 


DURESS   OF    TROPERTY.  477 

paid  under  protest.    This   suit   was  brought  to  recover  back  the 
money  thus  demanded.    This  is  the  whole  case.     *     *     *     * 

Applying  the  law  as  wc  find  it  to  the  facts  of  this  case  we  are  of  | 
opinion  there  was  no  duress.  It  is  a  duress  either  of  person  or  goods 
that  constitutes  the  coercion.  It  is  not  pretended  that  there  was  a 
duress  of  person,  nor  was  there  anything  to  show  duress  of  goods. 
There  was  nothing  but  the  denial  of  a  right,  and  a  declared  inten- 
tion not  to  recognize  a  right  is  not  duress.  It  is  true,  the  denial  of 
the  right  placed  the  plaintiff  in  a  "dilemma,"  to  use  the  expression 
of  Judge  Hare  in  Dawson's  case.  But  if  we  adopt  the  principle 
that  whenever  a  man  is  placed  in  a  position  in  which  the  law  is  doubt- 
ful, and  he  is  compelled  to  choose  between  two  paths,  in  other  words, 
to  decide  between  conflicting  views  of  the  law,  he  is  to  be  consid- 
ered as  under  duress,  we  shall  certainly  multiply  litigation,  even  if 
no  other  end  is  accomplished. 

It  is  fair  to  test  this  question  by  supposing  the  company  to  have 
done  what  it  is  alleged  they  threatened  to  do.  Suppose  the  plaintiff 
had  tendered  the  company  the  par  of  the  new  shares  to  which  he 
claims  he  was  entitled ;  that  the  company  had  declined  to  accept  it, 
and  had  sold  the  right  to  subscribe  for  a  corresponding  number  of 
shares.  How  would  this  have  affected  the  rights  of  the  plaintiff? 
The  company  could  no  more  have  sold  his  stock  than  they  could  have 
sold  his  house.  If  he  had  a  right  to  certain  shares  by  paying  $io 
each  therefor,  that  right  could  not  have  been  divested  by  a  sale  of 
them  by  the  company,  nor  by  any  other  action  on  its  part.  His  rights 
as  a  stockholder  were  fixed  by  the  law ;  a  certificate  would  have 
added  nothing  to  them ;  it  would  have  been  evidence,  nothing  more, 
that  he  owned  stock,  but  that  already  appeared  upon  the  books  of 
the  company.  The  duress,  if  any,  was  not  of  a  thing,  of  goods  or 
chattels,  but  of  an  incorporeal  right.  Had  the  stock  been  sold  he 
would  have  had  no  contest  with  the  purchaser,  as  he  would  have  nec- 
essarily had  if  a  corporeal  thing,  or  the  title  to  a  corporeal  thing  had 
been  sold  accompanied  by  delivery  of  possession.  He  had  to  do  only 
with  the  company ;  and,  after  tender  of  the  par,  could  have  brought 
this  suit  and  recovered,  as  before  stated,  the  market  value  of  the 
stock,  and  if  he  wanted  shares,  with  the  money  thus  recovered  could 
have  bought  a  corresponding  amount  of  other  shares. 

It  was  urged,  however,  that  this  case  is  upon  all  fours  with  Motz 
V.  Mitchell,  siipra,^  where  there  was  duress  of  an  unrecorded  deed, 
while  in  the  case  in  hand  there  was  duress  of  stock.  This  argument 
involves  the  assumption  that  a  certificate  had  been  issued  for  the 
new  shares,  which  certificate  the  company  unlawfully  withheld  from 
the  plaintiff.  In  point  of  fact,  the  plaintiff  never  had  a  certificate  for 
the  new  shares,  for  none  had  been  issued.  The  plaintiff  had  a  right 
to  demand  a  certificate  for  them  upon  payment  of  the  par,  and  to  sue 
them  for  a  refusal,  as  before  stated.  That  there  could  not  be  duress 
of  this  right  is  too  plain  for  argument.    There  was  not  duress  of  per- 

^91  Pa.  114. 


478  DURESS. 

son  or  goods ;  there  was  simply  the  denial  of  a  right ;  a  refusal  to 
issue  shares  of  stock  to  which  the  plaintiff  was  entitled,  and  for 
which  refusal  he  had  a  full,  complete,  and  convenient  remedy  at  law. 
We  may  concede  that  the  action  of  the  company  placed  him  in  a 
"dilemma" ;  he  had  to  choose  between  two  roads,  neither  of  which 
he  may  have  regarded  as  safe.  In  other  words,  he  was  uncertain  as 
to  his  legal  rights  under  the  scheme  proposed  by  the  company.  The 
"dilemma"  was  the  uncertainty  of  the  law.  There  was  no  other 
pressure  or  duress  that  caused  the  payment.  However  great  the 
uncertainty  of  the  law  may  be  in  particular  cases,  it  has  never  been 
supposed  to  amount  to  duress  of  either  person  or  goods.  It  was 
nothing  more  than  is  experienced  by  every  lawyer  in  the  course  of 
his  practice.  He  is  often  called  upon  to  advise  where  the  law  is  un- 
certain ;  and,  in  all  such  cases,  the  client  must  take  the  risk. 

We  attach  little  importance  to  the  suggestion  that  the  company 
was  acting  in  a  fiduciary  capacity.  This  was  a  matter  really  between 
the  stockholders,  and  they  were  evidently  dealing  at  arms'  length. 
The  corporate  organization  was  the  means  by  which  their  scheme 
was  carried  through. 

Fortunately,  the  plaintiff  suffers  no  injury  by  the  afifirmance  of 
this  judgment.  He  receives  his  proportion  of  the  new  shares  at  the 
same  price  at  which  they  were  issued  to  the  other  stockholders.  It 
is  true  he  does  not  get  shares  at  $io  for  which  others  paid  $20,  but 
his  equity  in  this  respect  is  not  strong. 

We  find  no  error  in  this  record. 

Judgment  affirmed. ^ 

Mr.  Justice  Sterrett  and  ]\Ir.  Justice  Clark  dissented. 

'As  an  appendix  to  136  Pa.  there  is  printed  (pp.  658-666),  at  the  request 
of  members  of  the  bar,  the  opinion  of  J.  I.  Clark  Hare,  P.  J.,  of  the  Court  of 
Common  Pleas  of  Philadelphia  county,  in  discharging  the  rule  for  a  new  trial 
in  Dawson  v.  Insurance  Co.,  which  was  argued  with  the  De  La  Cuesta  case  in 
the  supreme  court.  The  opinion  constitutes  a  valuable  monograph  on  recov- 
ery of  money  paid  under  duress  of  property. 

In  Bates  v.  New  York  Ins.  Co.,  3  Johns.  Cas.  238  (1802),  Butler  had  sub- 
scribed for  fifty  shares  of  the  defendant  company,  and  thereafter  assigned 
his  right  to  the  shares  to  plaintiff,  who  fulfilled  all  the  conditions  of  the  sub- 
scription. But  the  defendant  refused  to  transfer  the  shares  to  plaintiff  un- 
less he  would  pay  to  defendant  a  debt  of  $465  which  Butler  owed  to  defend- 
ant. Plaintiff  then  paid  Butler's  debt  and  the  defendant  _  transferred  the 
shares.  Plaintiff  later  sued  to  recover  back  the  money  paid  to  defendant, 
and  the  court  said  (p.  242)  :  "On  the  whole,  we  are  of  opinion  that  the  $465 
could  not,  under  all  circumstances,  be  considered  a  voluntary  payment, 
but  as  made,  in  some  measure,  by  compulsion,  an  undue  advantage  having 
been  taken  of  the  plaintiff's  situation,  and  that  he  ^ught  to  recover  it  back." 


DURESS   OF   PROPERTY.  479 

McMURTRIE  v.  KEENAN. 
109  Mass.   185. — 1872. 

The  maker  of  a  note  secured  by  a  mortgage  with  power  of  sale, 
paid  the  interest  due  thereon  ;  and  the  mortgagee  promised  to  indorse 
the  payment  on  the  note,  but  did  not  do  so,  denied  that  interest 
had  been  paid,  demanded  it  again,  and  threatened  to  sell  under  the 
mortgage  unless  the  interest  was  again  paid.  The  mortgagor  then 
paid  the  interest  a  second  time,  under  protest. 

Chapman,  C.  J. — If  a  defendant  in  an  action  has  paid  money  to 
the  creditor  to  be  indorsed  or  applied  on  the  demand  in  suit,  but  suf- 
fers the  plaintiff  to  take  judgment  for  the  whole  amount,  he  can- 
not recover  the  money  back.  He  has  had  his  day  in  court,  and 
the  judgment  is  conclusive.  Public  policy  requires  that  this  should 
be  so.  Loring  v.  Mansfield,  17  Mass.  394;  Jordan  v.  Phelps,  3  Cush. 
545 ;  Sacket  v.  Loomis,  4  Gray  148 ;  Fuller  v.  Shattuck,  13  Gray  70; 
Nettleton  v.  Beach,  107  Mass.  499.  But  if,  after  the  creditor  thus 
neglects  to  indorse  or  apply  it,  he  has  the  means  of  collecting  the 
whole  debt  without  giving  the  debtor  any  day  in  court,  and  does 
so  collect  it ;  as,  for  example,  by  warrant  of  distress,  or  by  selling  a 
pledge,  or  by  a  mortgage  with  power  of  sale,  or  by  collecting  securi- 
ties which  are  under  his  control,  then  the  debtor  may  recover  back 
the  money  which  has  thus  been  paid  and  not  applied.  There  is  no 
judgment  or  other  proceeding  which  estops  him. 

In  this  case  the  jury  have  found  that  the  plaintiff  paid  $120  for 
interest,  which  the  defendant  promised  to  indorse,  but  did  not.  But, 
having  his  note  secured  by  mortgage  with  power  of  sale,  he  threat- 
ened to  make  a  sale  unless  the  plaintiff  would  pay  the  interest  which 
he  claimed.  He  could  do  this  without  giving  the  plaintiff  any  day 
in  court.  The  plaintiff  is  therefore  entitled  to  recover  back  the  sum 
that  ought  to  have  been  indorsed.  Exceptions  overruled. 


2.      REAL   PROPERTY. 


l^ 


:\     ^' 


JOANNIN  ET  AL.  V.  OGILVIE  et  al. 

49  Minn.  564. — 1892. 


Action  on  a  note.  By  his  answer,  Ogilvie  admitted  his  liability 
on  the  note,  and  for  counterclaim  alleged  that  on  January  31,  1890, 
he  owned  lots  Nos.  93  and  95  in  Block  47  in  Duluth  proper,  and  had 
erected  buildings  thereon ;  that  he  bought  doors,  sash,  and  other 
goods  of  one  A.  H.  Thompson,  a  retail  dealer,  and  paid  him  for  them, 
and  used  them  in  the  buildings.     Thompson  had  previously  pur- 


480  DURESS. 

chased  these  goods  with  others  from  plaintiffs,  the  manufacturers, 
to  sell  again  at  retail  to  his  customers.  Thompson  was  indebted  to 
plaintiffs  on  account  for  goods  so  bought  of  them,  but  Ogilvie  did 
not  know  this.  On  that  day  plaintiffs  made  and  filed  for  record  a 
lien  statement,  claiming  to  be  due  them  from  Thompson  $682.50,  and 
that  he  was  a  contractor  with  Ogilvie  to  furnish  material  for  the 
buildings  on  the  lots.  This  claim  was  incorrect  and  the  lien  invalid. 
Ogilvie  was  largely  indebted,  and  pressed  for  money,  and  was  ne- 
gotiating for  a  loan  of  $15,000,  to  be  secured  by  his  mortgage  on  this 
real  estate.  The  lenders  refused  to  make  this  loan  unless  this  lien 
was  removed.  Plaintiffs  refused  to  discharge  it  of  record  unless 
Ogilvie  paid  Thompson's  debt  to  them.  He  paid  it  under  protest 
March  19,  1890,  and  in  this  action  asked  judgment  against  plain- 
tiffs for  the  amount  so  paid  (after  deducting  the  amount  due  them 
on  the  note).  The  court  found  the  payment  by  Ogilvie  to  plaintiffs 
was  made  under  duress,  and  directed  judgment  as  prayed  in  his 
answer. 

Mitchell,  J. — *  *  *  *  fi-,g  distinguishing  and  ruling  fact  in 
this  case  was  the  active  interference  of  plaintiffs  with  defendant's 
property  by  filing  the  claim  for  a  lien,  which  effectually  prevented  the 
defendant  from  using  it  for  the  purposes  for  which  he  had  immediate 
and  imperative  need.  It  was  this  active  interference  with  the  prop- 
erty, and  not  the  necessitous  financial  condition  of  the  defendant, 
which  constituted  the  controlling  fact.  The  latter  was  only  one,  and 
by  no  means  the  most  important,  of  the  circumstances  in  the  case. 
Counsel  for  plaintiffs  seems  to  assume  that  the  filing  of  the  claim  for 
a  lien  was  the  commencement  of  a  judicial  proceeding  for  its  enforce- 
ment, and  therefore,  within  the  doctrine  of  cases  cited  by  him,  that  the 
subsequent  payment  of  the  claim  was  voluntary,  because  defendant 
might  have  interposed  his  defense  in  these  proceedings.  But  this  is 
clearly  wrong.  Filing  a  lien  is  in  no  sense  the  commencement  of  ju- 
dicial proceedings.  The  only  remedies  open  to  defendant  were  either 
to  commence  a  suit  himself  to  determine  the  validity  of  plaintiffs' 
claim,  or  wait,  perhaps  a  year,  until  the  latter  should  commence  a  suit 
to  enforce  it.  But  with  a  large  indebtedness  hanging  over  him,  an 
overdue  mortgage  on  this  very  property  upon  which  foreclosure  was 
threatened,  with  no  means  to  pay  except  money  which  he  had  ar- 
ranged to  borrow  on  a  new  mortgage  which  he  had  executed  on  this 
same  property,  $13,000  of  which  was  withheld  and  could  not  be 
obtained  until  plaintiffs'  claim  of  lien  had  been  discharged  of  record, 
it  is  very  evident  that  neither  of  the  remedies  suggested  "would  do 
defendant's  business."  He  was  so  situated  that  he  could  neither  go 
backward  nor  forward.  He  had  practically  no  choice  but  to  submit 
to  plaintiffs'  demand.  Had  it  been  goods  and  chattels  which  plain- 
tiffs had  withheld  under  like  circumstances,  there  would  be  no  doubt, 
under  the  doctrine  of  Fargusson  v.  Winslow,  supra  [34  Minn.  384], 
but  that  the  payment  would  be  held  to  have  been  made  under  duress. 
But  while  filing  the  lien  did  not  interfere  with  defendant's  posses- 
sion of  the  land,  yet  it  as  effectually  deprived  him  of  the  use  of  it 


DURESS   OF   PROPERTY.  48 1 

for  the  purposes  for  which  he  needed  it  as  would  withholding;  the 
possession  of  chattel  property. 

It  has  been  sometimes  said  that  there  can  be  no  such  thing  as 
duress  with  respect  to  real  property,  so  as  to  render  a  payment  of 
money  on  account  of  it  involuntary.  But  this  is  not  sustained  by 
either  principle  or  authority.  In  view  of  the  immovable  character 
of  real  property,  duress  with  respect  to  it  is  not  likely  to  occur  as 
often  as  with  respect  to  goods  and  chattels.  But  the  question  in  all 
cases  is,  was  the  payment  voluntary?  and  for  the  purpose  of  deter- 
mining that  question  there  is  no  difference  w'hether  the  duress  be  of 
goods  and  chattels,  or  of  real  property,  or  of  the  person.  Fraser  v. 
Pendlebury,  31  Law  J.  C.  P.  i ;  Pemberton  v.  Williams,  87  111.  15  ; 
Close  V.  Phipps,  7  Man.  &  G.  586;  White  v.  Heylman,  34  Pa.  St. 
142;  State  V.  Nelson,  supra  [41  ]\Iinn.  25].  Considerable  stress  is 
placed  upon  defendant's  silence  and  apparent  acquiescence  for  a  con- 
siderable time  after  he  paid  the  plaintiffs'  claim.  This  might  have 
some  bearing  upon  the  question  whether  the  payment  was  voluntary 
or  involuntary  ;  but  if  it  was  in  fact  the  latter,  and  a  cause  of  action  to 
recover  back  the  money  accrued  to  defendant,  it  would  be  neither 
waived  nor  barred  by  his  subsequent  silence  or  delay  in  asserting  his 
right  of  action.  Judgment  affirmed.^ 

^  Compare  Wessel  v.  Johnston  Land  and  Mortgage  Co.,  3  N.  Dak.  160 
(1893). 

In  First  Nat.  Bank  of  David  City  v.  Sargeant,  65  Neb.  594  (1902)  :  "S.  had 
conveyed,  by  a  warranty  deed  absolute  in  form,  to  a  bank  certain  real  estate 
as  security  for  an  indebtedness  owing  by  S.  to  the  bank.  S.  was  in  financial 
distress,  and  had  no  means  of  meeting  his  indebtedness  save  by  a  sale  of  the 
real  estate.  The  bank  thereafter  assumed  to  be  the  absokite  owner  of  the 
property  and  denied  to  S.  any  right,  interest  or  equity  therein,  and  by  injunc- 
tion proceedings  undertook  to  dispossess  him  of  a  portion  of  such  land.  S. 
procured  a  purchaser  at  an  advantageous  price,  and  endeavored  to  adjust  his 
differences  with  the  bank,  so  as  to  effectuate  a  sale  of  the  property,  and  meet 
pressing  demand.'-,  against  him.  The  bank  refused  to  consent  to  a  sale  or  re- 
lease its  interest  or  reconvey  the  premises  to  S.  so  that  a  sale  might  be  con- 
summated without  the  payment  by  S.  of  a  large  sum  of  money  in  excess  of 
the  amount  justly  due.  Held,  under  the  facts  and  circumstances  as  disclosed 
by  the  record,  that  the  payment  of  the  excess  over  and  above  the  amount 
justly  due  was  made  under  duress  and  compulsion,  and  might  be  recovered 
back  in  an  action  brought  for  that  purpose." — (Syllabus.) 

In  Wells  v.  Adams,  88  Mo.  App.  215,  225  (1901),  the  court  says:  "The 
case  here  is  that  the  defendants  'held  the  plaintiff  by  the  wrists' — they  had  a 
large  incumbrance  on  his  lands.  He  was  being  pressed  by  other  creditors 
and  unless  he  could  secure  a  release  of  the  defendants'  incumbrance,  and  thus 
be  enabled  to  make  a  disposition  of  the  property,  he  was  likely  to  become  a 
bankrupt,  or,  at  last,  suffer  a  great  sacrifice  and  loss  of  his  property.  In  or- 
der to  extricate  himself  from  this  embarrassing  situation  he  must  have  his 
property  disincumbered,  and  this  could  be  accomplished  only  by  the  payment 
of  the  defendants'  illegal  exaction.  He  was  practically  confronted  with  the 
question  whether  or  not  he  should  pay  the  defendants  the  amount  exacted  or 
suffer  the  serious  consequences  to  be  reasonably  apprehended  from  a  refusal 
to  do  so.  The  payment  under  such  circumstances,  it  seems  to  us.  would  be 
under  an  urgent  necessity — under  a  kind  of  moral  duress.  Duress  may  be 
shown  with  respect  to  real  property  as  well  as  personal  so  as  to  render  pay- 
WooDRUFP's  Cases — 31 


^^ 


DURESS. 

ii.  Injury  to  Business. 
PANTON  ET  AL.  V.  DULUTH  GAS  &  WATER  CO. 

50  Minn.  175. — 1892. 

Dickinson,  J. — The  defendant  is  a  corporation  owning  and  oper- 
ating the  water  works  by  which  the  city  of  Duluth  is  supphed  with 
water,  and  authorized  by  law  to  charge  for  water  suppHed  to  the  in- 
habitants at  specified  rates,  measured  by  the  quantity  supplied.  The 
plaintiffs  occupy  a  building  in  the  city  for  mercantile  purposes,  and 
keep  in  their  service  therein  some  forty  or  fifty  employes.  The  only 
water  supply  for  the  premises  is  that  afforded  by  the  defendant. 
There  are  three  water-closets  in  the  building,  and  faucets  elsewhere 
for  drawing  water,  these  all  being  supplied  with  water  in  the  usual 
manner.  The  water  thus  supplied  is  used  for  the  closets,  for  sprink- 
ling, washing  floors  and  windows,  for  drinking,  and  for  the  ordinary 
daily  use  of  the  persons  in  the  building,  but  not  for  culinary  purposes. 
The  defendant  made  a  demand  on  plaintiffs  for  payment  of  a  speci- 
fied sum  for  use  of  water  during  a  particular  period.  The  plain- 
tiffs refused  to  pay  that  sum,  claiming  that  the  water  meter  on  the 
premises,  put  in  by  the  defendant,  did  not  correctly  measure  the 
amount  of  water  passing  through  it,  and  that  the  amount  of  water  for 
which  the  charge  was  made  was  much  in  excess  of  the  amount  actu- 
ally used.  The  defendant  was  about  to  shut  off  the  water  supply  from 
the  building  because  of  such  refusal,  as  it  assumed  the  right  to  do, 
when  the  plaintiffs,  in  order  to  prevent  the  water  being  shut  off, 
paid  the  sum  charged,  under  protest,  and  now  prosecute  this  action 
to  recover  back  the  amount  of  the  alleged  overcharge. 

1.  Upon  the  question  of  fact  as  to  the  water  meter  having  errone- 
ously indicated  the  amount  of  water  passing  through  it,  the  jury 
found  in  favor  of  the  plaintiffs.  The  court,  considering  that  the 
evidence  did  not  justify  the  verdict,  granted  a  new  trial.  Upon  this 
point  the  case  of  Hicks  v.  Stone,  13  Minn.  434  (Gil.  398),  and  the 
numerous  decisions  in  which  the  rule  there  announced  has  been  re- 
affirmed and  applied,  is  conclusive.  The  evidence  was  such  as  to 
justify  the  order. 

2.  The  question  is  presented,  and  may  be  expected  to  again  arise 
upon  a  second  trial,  whether  the  circumstances  under  which  the 
plaintiffs  made  the  payment  were  such  that  the  payment  may  be 
regarded  as  having  been  so  far  compulsory  or  necessary  that  an 
action  will  lie  to  recover  it  back.  We  are  of  the  opinion  that  it  is 
to  be  so  regarded.     In  buildings  as  now  constructed  in  populous 

merit  on  account  of  it  involuntary  and  permit  it  to  be  recovered  back.  Joan- 
nin  V.  Oprilvie,  49  Minn.  564:  Pemberton  v.  Williams,  iiy  Til.  15;  White  y. 
ITa^^clman,  .34  Pa.  St.  142;  Fraser  v.  Pendebury,  31  L.  J.  P.  i."  See  also,  in 
accord,  Van  Dyke  v.  Wood,  60  App.  Div.  (N.  Y.)  208  (1901). 


INJURY    TO    BUSINESS.  483 

cities,  where  there  is  an  adequate  supply  of  water,  and  especially 
in  buildings  occupied  by  so  many  persons  as  are  shown  to  have  been 
employed  in  the  plaintiffs'  store,  water-closets  may  well  be  regarded 
as  reasonably  necessary.  The  closets  provided  for  use  on  these 
premises,  and  comprising  a  part  of  the  building,  would  have  been 
useless  unless  supplied  with  water ;  and  there  was  no  other  prac- 
ticable source  of  supply  save  that  afforded  by  the  defendant.  The 
defendant  was  under  legal  obligation  to  supply  water  at  the  proper 
price.  It  was  the  plaintiff's'  right  to  have  it  thus  supplied.  The 
defendant  of  its  own  will  merely,  and  without  any  legal  determina- 
tion as  to  the  disputed  fact  upon  which  the  exercise  of  such  a  power 
depended,  was  about  to  cut  off  the  whole  water  supply  from  these 
premises.  This  was  a  kind  of  execution  in  advance  of  judgment. 
The  plaintiffs  would  be  compelled  to  submit  to  being  deprived  of  the 
use  of  water  on  their  premises  until  by  such  legal  proceedings  as 
they  might  institute  for  that  purpose,  they  could  legally  establish 
the  fact  that  the  charge  was  excessive.  Their  only  alternative  was 
to  pay  what  was  demanded  of  them.  We  think  that  such  a  case  falls 
within  the  class  in  respect  to  which  it  may  be  said  that  the  payment 
is  virtually  compulsory,  and  not  voluntary,  in  the  sense  that  the 
party  is  concluded  by  it.  What  was  said  upon  the  law  of  duress  in 
the  recent  decision  in  Joannin  v.  Ogilvie,  49  Minn.  564,  renders  un- 
necessary any  more  full  discussion  of  the  subject. 

Order  affirmed.^ 

^Accord,  Westlake  v.  City  of  St.  Louis,  "jj  Mo.  47  (1882)  ;  St.  Louis  Brew- 
ing Asso.  V.  City  of  St.  Louis,  zy  S.  W.  (Mo.)  525  (1896).  Buckley  v.  Mayor, 
30  App.  Div.  (N.  Y.  Supreme  Ct.)  463  (1898). 

In  Guetzkow  v.  Breese,  96  Wis.  591,  597  (1897),  the  court  says:  "We  en- 
tertain no  doubt  that  under  the  facts  found  by  the  circuit  court  there  was  a 
case  of  duress  of  goods.  The  case  was  this:  The  plaintiff  could  not  obtain 
the  insurance  money  due  it  unless  the  defendants  joined  in  executing  the 
proofs  of  loss  and  in  endorsing  the  drafts.  The  defendants  refused  to  do 
these  things  unless  the  plaintiff  would  pay  them  $666.74,  which  it  did  not 
owe.  The  plaintiff  was  in  a  position  where  it  must  obtain  its  insurance 
money  at  once  in  order  to  go  on  with  its  business  and  fulfill  valuable  out- 
standing contracts,  or  it  would  suffer  great  loss.  Under  these  circumstances 
it  submitted,  under  protest,  to  the  unjust  demand  in  order  to  obtain  its  own 
money  from  the  insurance  company.  This  makes  a  case  of  legal  duress  of 
goods.  Vyne  v.  Glenn,  41  Mich.  112;  Corkle  v.  Maxwell,  3  Blatchf.  413; 
Scholey  v.  Mumford,  60  N.  Y.  498;  Cobb  v.  Charter,  32  Conn.  358." 

In  Carew  v.  Rutherford  and  others,  106  Mass.  i  (1870),  which  was  a  con- 
tract action,  with  a  count  also  in  tort,  to  recover  back  money  had  and  re- 
ceived, the  court  says  (p.  13)  :  "Without  vmdertaking  to  lay  down  a  precise 
rule  applicable  to  all  cases,  we  think  it  clear  that  the  principle  which  is  estab- 
lished by  all  the  authorities  cited  above,  whether  they  are  actions  of  tort  for 
disturbing  a  man  in  the  exercise  of  his  rights  and  privileges,  or  to  recover  back 
money  tortiously  obtained,  extends  to  a  case  like  the  present.  We  have  no 
doubt  that  a  conspiracy  against  a  mechanic,  who  is  under  the  necessity  of 
employing  workmen  in  order  to  carry  on  his  business,  to  obtain  a  sum  of 
money  from  him,  which  he  is  under  no  legal  liability  to  pay,  by  inducing  his 
workmen  to  leave  him,  and  by  deterring  others  from  entering  into  his  em- 
ployment, or  by  threatening  to  do  this,  so  that  he  is  induced  to  pay  the  money 
demanded,  under  a  reasonable  apprehension  that  he  cannot  carry  on  his  busi- 


DURESS. 


REGAN  V.  BALDWIN. 

126  Mass.  485. — 1879. 

Contract.  The  declaration  alleged  that  the  plaintiff  and  defend- 
ant executed  an  indenture,  whereby  the  defendant  leased  to  the  plain- 
tiff the  lower  floor  of  a  building  in  Essex  Street  in  Boston,  and  the 
cellar  under  the  same,  for  the  term  of  ten  years  from  October  i, 
1867 ;  that  by  the  terms  of  the  lease,  a  copy  of  which  was  annexed, 
the  plaintiff  was  to  pay  the  defendant  a  certain  rent  monthly,  "except 
only  in  case  of  fire  or  other  casualties,"  and  to  keep  the  premises  in 
repair,  "reasonable  use  and  wear,  and  damage  by  accidental  fire  or 
other  inevitable  accidents  only  excepted ;"  that  the  lease  also  con- 
tained the  following  clause :  "Provided  always,  that  in  case  the  prem- 
ises, or  any  part  thereof,  shall,  during  said  term,  be  destroyed  or 
damaged  by  fire,  or  other  unavoidable  casualty,  so  that  the  same 
shall  be  thereby  rendered  unfit  for  use  and  habitation,  then,  and  in 
such  case,  the  rent  hereinafter  reserved,  or  a  just  and  proportionate 
part  thereof,  according  to  the  nature  and  extent  of  the  injury  sus- 
tained, shall  be  suspended  or  abated  until  said  premises  shall  have 
been  put  in  proper  condition  for  use  and  habitation  by  the  said 
lessor,  or  these  presents  shall  be  thereby  determined  and  ended  at 
the  election  of  said  lessor  or  his  legal  representatives." 

The  declaration  further  alleged  that  the  building  on  the  premises 
was  burned  and  injured  by  fire  on  May  30,  1873,  ^^^1  the  store  and 
cellar,  leased  to  the  plaintiff,  rendered  unfit  for  use  and  habitation ; 
that  the  cellar  was  not  put,  by  the  lessor,  in  suitable  condition  and 
repair  for  occupancy,  use  and  habitation  for  the  space  of  one  year 
and  longer ;  and  the  defendant,  though  often  requested,  refused  to 
do  so ;  that  the  lease  was  not  determined  and  ended  by  the  defend- 
ant, or  by  any  other  person  having  authority  to  do  so ;  that  the 
plaintiff  had  kept  the  covenants  and  agreements  on  his  part  to  be 
kept  and  performed,  and  that  the  defendant  had  not  kept  and  per- 
formed his  part  of  said  indenture ;  that  the  defendant  refused  to 
abate  and  suspend  said  rent,  or  a  just  and  proportionate  part  thereof, 
but  exacted  of,  and  the  plaintiff  had  been  obliged  by  the  defendant 
to  pay,  the  rent  in  full,  as  reserved  in  said  indenture,  which  the 
plaintiff  did  under  protest,  in  order  to  save  his  estate  and  business. 

The  defendant  demurred  to  the  declaration,  assigning  as  cause  of 
demurrer  that  the  matters  therein  set  forth  were  insufficient  to  enable 
the  plaintiff  to  maintain  the  action.     The  Superior  Court  sustained 

ness  without  yielding  to  the  illegal  demand,  is  an  illegal,  if  not  a  criminal, 
conspiracy ;  that  the  acts  done  under  it  are  illegal ;  and  that  the  money  thus 
obtained  may  be  recovered  back,  and,  if  the  parties  succeed  in  injuring  his 
business,  they  are  liable  to  pay  all  the  damage  thus  done  to  him.  It  is  a 
species  of  annoyance  and  extortion  which  the  common  law  has  never  toler- 
ated." 


INJURY    TO   BUSINESS.  485 

the  demurrer,  and  ordered  judgment  for  the  defendant;  and  the 
plaintiff  appealed. 

Lord,  J. — In  this  case  the  demurrer  was  properly  sustained.  The 
plaintiff's  declaration  sets  forth  no  cause  of  action  which  entitles 
him  to  recover.  The  amount  which  he  seeks  to  reclaim  was  a  sum 
which  he  voluntarily  paid  ;  he  paid  it  under  no  mistake  of  fact,  and 
it  has  long  been  held  that  money  so  paid  cannot  be  recovered  back. 
*  *  *  *  The  fact  that  the  plaintiff  in  this  case  might  have  been 
under  embarrassment  as  to  the  amount  of  rent  which  he  should  with- 
hold, or  which  he  might  properly  claim  to  rebate,  does  not  affect  the 
principle.  It  was  his  right  to  litigate  that  question  with  his  lessor,/ 
and  his  election  to  pay  the  full  amount  rather  than  to  resist  the  pay- 
ment of  any  portion  of  it  makes  the  payment  a  voluntary  one.  It  is 
not  necessary  to  consider  whether  the  plaintiff  w^ould  have  been  en- 
titled to  a  cross  action  had  the  lease  contained  an  express  covenant 
to  keep  the  premises  in  repair,  for  the  lease  contains  no  such  cove- 
nant, and  the  law  raises  no  implied  promise  to  do  so.  The  lease  is 
in  the  form  long  used  in  this  Commonwealth,  which  requires  the 
lessee  himself  to  keep  the  premises  in  such  repair  as  he  receives 
them  (reasonable  use  and  wear,  and  damage  by  accidental  fire  or 
other  inevitable  accident  only  excepted),  with  the  right,  commonly 
reserved  in  such  leases,  to  have  deducted  from  the  rent  a  reasonable 
amount,  if  he  is  deprived  of  the  use  of  the  premises  by  such  casu- 
alty. Judgment  affirmed. 


ATKINSON  V.  DENBY. 

6  Hurl.  &  Norm.  (Exch.)   778. — 1861. 

Action  for  money  had  and  received.  Plea. — Never  indebted.  At 
the  trial,  before  Martin,  B.,  at  the  Middlesex  sittings,  in  Michaelmas 
Term,  i860,  it  appeared  that  the  action  was  brought  to  recover  50/., 
paid  by  the  plaintiff  to  the  defendant  under  the  following  circum- 
stances. In  October,  1857,  the  plaintiff,  a  manufacturer,  being  in 
embarrassed  circumstances,  offered  a  composition  to  his  creditors  of 
5s.  in  the  pound,  and  a  deed  of  composition  was  prepared  for  the 
purpose  of  carrying  out  the  offer.  The  defendant,  a  creditor  for 
319/.,  refused  to  accept  that  offer  or  to  sign  the  deed  of  composition, 
saying  he  never  would  consent  to  do  so  unless  he  got  something 
more.  On  the  13th  of  October,  the  defendant  and  the  plaintiff  met 
at  the  office  of  the  plaintiff's  attorney,  when  the  plaintiff  and  defend- 
ant went  into  a  private  room.  The  defendant  pressed  the  plaintiff 
to  give  him  150/.  in  cash  in  addition  to  the  5s.  in  the  pound,  but 
eventually  he  agreed  to  take  a  bill  at  six  months  for  108/.  and  50/. 
in  cash.  The  defendant  knew  that  several  creditors  were  then  wait- 
ing to  see  what  he  would  do.  The  plaintiff  gave  the  defendant  50/. 
and  a  bill  for  108/.     The  defendant  then  signed  the  deed.     Five 


486  DURESS. 

creditors  had  previously  executed  it,  and  twenty  signed  subsequently 
to  the  signature  of  the  defendant.  The  composition  was  paid.  The 
plaintiff  was  non-suited,  leave  being  reserved  to  him  to  move  to 
enter  a  verdict  for  50/. 

Bramwell,  B. — I  am  of  opinion  that  the  rule  ought  to  be  abso- 
lute. Nothing  can  be  more  dishonest  on  the  part  of  a  creditor  than 
to  pretend  to  take  a  composition  of  5s.  in  the  pound,  and  then  agree 
privately  with  the  debtor  for  payment  of  a  larger  sum  and  so  get 
more  than  the  other  creditors.  It  may  be  that  I  am  influenced  by 
that  consideration ;  but  if  it  were  not  for  the  opinion  entertained  by 
my  brother  Martin,  I  should  have  thought  the  law  plain.  I  agree 
that  if  a  man  voluntarily  pays  money  which  he  was  not  bound  to 
pay,  as  a  general  rule  he  cannot  recover  it  back.  So,  if  a  man  volun- 
tarily pays  a  bill  of  exchange  which  he  was  not  bound  to  pay,  he 
cannot  say,  'T  ought  not  to  have  done  so,  and  I  will  now  recover 
back  the  amount."  I  admit  also,  that  if  a  man,  upon  a  corrupt  bar- 
gain, pays  money  or  gives  a  bill  of  exchange,  he  cannot  recover  it 
back.  But  upon  this  general  rule  there  has  been  engrafted  what  has 
been  called  judge-made  law,  but  which  I  think  is  most  salutary  law. 
The  qualification  is  this,  that  where,  though  the  act  is  voluntary  in 
one  sense,  the  person  for  whom  it  is  done  has  a  species  of  power 
over  the  other,  so  that  the  latter  does  the  act  under  coercion,  there, 
though  the  contract  is  unlawful,  it  is  not  a  case  of  par  delictum, 
because  it  is  a  case  of  oppressor  and  oppressed.  That  is  the  qualifi- 
cation of  the  general  rule,  and  in  such  cases,  though  the  payment  of 
the  money  is  in  a  certain  sense  voluntary,  it  may  be  recovered  back. 
If  that  is  not  true.  Smith  v.  Bromley,  2  Doug.  695,  n.,  and  Smith  v. 
Cuff,  6  M.  &  Sel.  160,  were  wrongly  decided,  because  there  the  act 
was  in  one  sense  voluntary  and  the  agreement  illegal.  But  those 
cases  having  been  so  decided,  I  think  we  are  bound  by  them. 

Then,  as  a  general  rule,  a  voluntary  act  cannot  be  undone,  an  un- 
lawful agreement  cannot  be  enforced ;  but  the  cases  to  which  I  have 
referred  have  established  the  qualification  I  have  mentioned.  Here, 
though  in  one  sense  the  payment  was  voluntary  and  the  agreement 
illegal,  it  was  a  payment  under  coercion,  and  the  parties  were  not  in 
pari  delicto  because  there  was  an  oppressor  and  an  oppressed.  At  one 
time  I  doubted  whether  the  payment  ought  not  to  be  considered  vol- 
untary, not-  in  the  sense  that  the  plaintiff  was  not  bound  to  make  it, 
but  that  at  the  time  he  paid  the  money  he  did  not  get  the  benefit  of 
his  bargain.  The  evidence,  however,  showed  that  the  whole  trans- 
action was  imo  flatu,  and  whether  the  advantage  to  be  got  by  the 
payment  occurred  at  the  time  it  was  made  or  a  week  afterwards 
seems  to  me  to  make  no  difference.  If,  indeed,  the  plaintiff  had 
voluntarily  paid  the  money  after  the  composition  was  entered  into, 
the  case  would  not  have  been  within  the  qualification  I  have  men- 
tioned, and  Wilson  v.  Ray,  to  A.  &  E.  82  (E.  C.  L.  R.  vol.  37),  is 
an  authority  that  the  money  could  not  have  been  recovered  back. 
With  groat  deference  to  Lord  Wensleydale,  and  the  doubt  he  ex- 
pressed in  Higgins  v.  Pitt,  4  Exch.  325,  as  to  the  soundness  of  the 


INJURY    TO    BUSINESS.  48 

dictum  of  Lord  Ellenrorougii  and  Bavley,  ].,  in  Smith  v.  Cuff,  6 
M.  &  Sel.  i6o,  I  think  that  case  was  rightly  decided.  In  my  opinion 
it  cannot  alter  the  principle  whether  a  bill  is  given  which  the  debtor 
is  obliged  to  pay  to  a  bona  fide  holder,  after  the  execution  by  the 
creditor  of  the  composition  deed,  or  whether  the  money  is  previously 
paid  by  the  debtor  to  the  creditor.  It  makes  no  difference  that  in 
the  one  case  the  form  of  action  would  be  for  money  paid,  in  the 
other  for  money  had  and  received.  At  first  I  doubted  whether  this 
was  not  a  voluntary  payment,  but  I  should  be  reluctant  to  hold  that 
the  debtor  is  bound  to  say,  after  the  creditor  has  executed  the  deed 
of  composition,  "I  will  not  give  you  what  you  ask  ;"  it  would  intro- 
duce dishonesty.  I  would  rather  a  debtor  should  perform  his  bar- 
gain then  and  recover  back  the  money.  Smith  v.  Bromley,  2  Doug. 
695,  n.,  is  an  authority  that  this  is  not  a  voluntary  payment  in  the 
sense  that  the  plaintiff  need  not  have  been  paid  the  money.  It  was 
a  payment  for  the  purpose  of  obtaining  an  advantage  which  the  de- 
fendant withheld,  and  which  he  extortionately  granted.  If  this  view 
is  wrong  no  action  could  have  been  maintained  in  Smith  v.  Bromley, 
2  Doug.  695,  n.,  and  Smith  v.  Cuff,  6  M.  &  Sel.  160. 

Rule  absolute. 
[Concurring  opinions  by  Pollock,  C.  B.,  and  Wilde,  B.  ;  dissent- 
ing opinion  by  Martin,  B.] 


SOLINGER  V.  EARLE. 

82  N.  Y.  393-— 1880. 

Andrews,  J. — The  complaint  alleges  in  substance  that  the  plaintiff, 
to  induce  the  defendants  to  imite  with  the  other  creditors  of  New- 
man &  Bernhard  in  a  composition  of  the  debts  of  that  firm,  made  a 
secret  bargain  with  them  to  give  them  his  negotiable  note  for  a 
portion  of  their  debt,  beyond  the  amount  to  be  paid  by  the  composi- 
tion agreement.  He  gave  his  note  pursuant  to  the  bargain,  and 
thereupon  the  defendants  signed  the  composition.  The  defendants 
transferred  the  note  before  due  to  a  bona  Ude  holder,  and  the  plaintiff 
having  been  compelled  to  pay  it  brings  this  action  to  recover  the 
money  paid.  The  complaint  also  alleges  that  the  plaintiff  was  the 
brother-in-law  of  Newnnan,  and  entertained  for  him  a  natural  love 
and  affection,  and  was  solicitous  to  aid  him  in  effecting  the  com- 
promise, and  that  the  defendants  knowing  the  facts,  and  taking  an 
unfair  advantage  of  their  position,  extorted  the  giving  of  the  note 
as  a  condition  of  their  becoming  parties  to  the  composition. 

We  think  this  action  cannot  be  maintained.  The  agreement  be- 
tween the  plaintiff  and  the  defendants  to  secure  to  the  latter  payment 
of  a  part  of  their  debt  in  excess  of  the  ratable  proportion  payable 
imder  the  composition,  was  a  fraud  upon  the  other  creditors.  The 
fact  that  the  agreement  to  pay  such  excess  was  not  made  by  the 


488  DURESS. 

debtor,  but  by  a  third  person,  does  not  divest  the  transaction  of  its 
fraudulent  character. 

A  composition  agreement  is  an  agreement  as  well  between  the 
creditors  themselves,  as  between  the  creditors  and  their  debtor.  Each 
creditor  agrees  to  receive  the  sum  fixed  by  the  agreement  in  full  of 
his  debt.  The  signing  of  the  agreement  by  one  creditor  is  often  an 
inducement  to  the  others  to  unite  in  it.  If  the  composition  provides 
for  a  pro  rata  payment  to  all  the  creditors,  a  secret  agreement,  by 
which  a  friend  of  the  debtor  undertakes  to  pay  one  of  the  creditors 
more  than  his  pro  rata  share,  to  induce  him  to  unite  in  the  compo- 
sition, is  as  much  a  fraud  upon  the  other  creditors  as  if  the  agree- 
ment was  directly  between  the  debtor  and  such  creditor.  It  violates 
the  principle  of  equity,  and  the  mutual  confidence  as  between  credit- 
ors, vipon  which  the  agreement  is  based,  and  diminishes  the  motive 
of  the  creditor  who  is  a  party  to  the  secret  agreement,  to  act  in 
view  of  the  common  interest  in  making  the  composition.  Fair  deal- 
ing and  common  honesty  condemn  such  a  transaction.  If  the  de- 
fendants here  were  plaintiffs  seeking  to  enforce  the  note,  it  is  clear 
that  they  could  not  recover.  Cockshott  v.  Bennett,  2  Term  R.  y62i ', 
Leicester  v.  Rose,  4  East  372.  The  illegality  of  the  consideration 
upon  well-settled  principles  would  be  a  good  defense.  The  plaintiff, 
although  he  was  cognizant  of  the  fraud,  and  an  active  participator 
in  it,  would  nevertheless  be  allowed  to  allege  the  fraud  to  defeat  the 
action,  not,  it  is  true,  out  of  any  tenderness  for  him,  but  because 
courts  do  not  sit  to  give  relief  by  way  of  enforcing  illegal  contracts, 
on  the  application  of  a  party  to  the  illegality.  But  if  he  had  volun- 
tarily paid  the  note,  he  could  not,  according  to  the  general  prin- 
ciple applicable  to  executed  contracts  void  for  illegality,  have  main- 
tained an  action  to  recover  back  the  money  paid.  The  same  rule 
which  would  protect  him  in  an  action  to  enforce  the  note,  protects 
the  defendants  in  resisting  an  action  to  recover  back  the  money  paid 
upon  it.   Nellis  v.  Clark,  4  Hill  429. 

It  is  claimed  that  the  general  rule  that  a  party  to  an  illegal 
contract  cannot  recover  back  money  paid  upon  it  does  not  apply  to 
the  case  of  money  paid  by  a  debtor,  or  in  his  behalf,  in  pursuance  of 
a  secret  agreement,  exacted  by  a  creditor  in  fraud  of  the  composi- 
tion, and  the  cases  of  Smith  v.  Bromley  (2  Doug.  696),  Smith  v. 
Cuff  (6  M.  &  S.  160),  and  Atkinson  v.  Denby  (7  H.  &  N.  934)  are 
relied  upon  to  sustain  this  claim.  In  Smith  v.  Bromley  the  defend- 
ant, being  the  chief  creditor  of  a  bankrupt,  took  out  a  commission 
against  him,  but  afterward  finding  no  dividend  likely  to  be  made, 
refused  to  sign  the  certificate  unless  he  was  paid  part  of  his  debt, 
and  the  plaintiff,  who  was  the  bankrupt's  sister,  having  paid  the  sum 
exacted,  brought  her  action  to  recover  back  the  money  paid,  and  the 
action  was  sustained.  Lord  Mansfield,  in  his  judgment,  referred 
to  the  statute  (5  Geo.  II,  chap.  30,  sec.  11),  v/hich  avoids  all  con- 
tracts made  to  induce  a  creditor  to  sign  the  certificate  of  the  bank- 
rupt, and  said  :  "The  present  is  a  case  of  a  transgression  of  a  law 
made  to  prevent  oppression,  either  on  the  bankrupt  or  his  family, 


INJURY    TO   BUSINESS,  489 

and  the  plaintiff  is  in  the  case  of  a  person  oppressed,  from  whom 
money  has  heen  extorted  and  advantage  taken  of  her  situation  and 
concern  for  her  brother."  And  again  :  "If  any  near  relation  is  in- 
duced to  pay  the  money  for  the  bankrupt,  it  is  taking  an  unfair  ad- 
vantage and  torturing  the  compassion  of  his  family."  In  Howson  v. 
Hancock  (8  Term  R.  575)  Lord  Ken  yon  said  that  Smith  v.  Brom- 
ley was  decided  on  the  ground  that  the  money  had  been  paid  by  a 
species  of  duress  and  oppression,  and  the  parties  were  not  in  pari 
delicto,  and  this  remark  is  fully  sustained  by  reference  to  Lord 
Mansfield's  judgment.  Smith  v.  Cuff  was  an  action  brought  to 
recover  money  paid  by  the  plaintiff"  to  take  up  his  note  given  to  the 
defendant,  for  the  balance  of  a  debt  owing  by  the  plaintiff,  which 
was  exacted  by  the  latter  as  a  condition  of  his  signing  with  the  other 
creditors  a  composition.  The  defendant  negotiated  the  note  and  the 
plaintiff  was  compelled  to  pay  it.  The  plaintiff  recovered.  Lord 
Ellenborough  said :  "This  is  not  a  case  of  par  delictum;  it  is  op- 
pression on  the  one  side  and  submission  on  the  other ;  it  never  can 
be  predicated  as  par  delictum  where  one  holds  the  rod  and  the  other 
bows  to  it."  Atkinson  v,  Denby  was  the  case  of  money  paid  di- 
rectly by  the  debtor  to  the  creditor.  The  action  was  sustained  on 
the  authority  of  Smith  v.  Bromley  and  Smith  v.  Cuff. 

It  is  somewhat  difficult  to  understand  how  a  debtor  who  simply 
pays  his  debt  in  full  can  be  considered  the  victim  of  oppression  or 
extortion  because  such  payment  is  exacted  by  the  creditor  as  a  con- 
dition of  his  signing  a  compromise,  or  to  see  how  both  the  debtor 
and  creditor  are  not  in  pari  delicto.  (See  remark  of  Parke,  B.,  in 
Higgins  V.  Pitt,  4  Exch.  312.)  But  the  cases  referred  to  go  no 
farther  than  to  hold  that  the  debtor  himself,  or  a  near  relative  who 
out  of  compassion  for  him  pays  money  upon  the  exaction  of  the 
creditor,  as  a  condition  of  his  signing  a  composition,  may  be  regarded 
as  having  paid  under  duress  and  as  not  equally  criminal  with  the 
creditor. 

These  decisions  cannot  be  upheld  on  the  ground  simply  that  such 
payment  is  against  public  policy.  Doubtless  the  rule  declared  in 
these  cases  tends  to  discourage  fraudulent  transactions  of  this  kind, 
but  this  is  no  legal  ground  for  allowing  one  wrongdoer  to  recover 
back  money  paid  to  another  in  pursuance  of  an  agreement,  illegal  as 
against  public  policy.  It  was  conceded  by  Lord  Mansfield,  in 
Smith  V.  Bromley,  that  when  both  parties  are  equally  criminal  against 
the  general  laws  of  public  policy,  the  rule  is  potior  est  conditio  dc- 
fendentis,  and  Lord  Kenyon,  in  Howson  v.  Hancock,  said  that  there 
is  no  case  where  money  has  been  actually  paid  by  one  of  two  parties 
to  the  other  upon  an  illegal  contract,  both  being  particeps  criminis, 
an  action  has  been  maintained  to  recover  it  back. 

It  is  laid  down  in  Cro.  Jac.  187,  that  "a  mian  shall  not  avoid  his 
deed  by  duress  of  a  stranger,  for  it  hath  been  held  that  none  shall 
avoid  his  own  bond  for  the  imprisonment  or  danger  of  anv  one  than 
himself  only."  And  in  Robinson  .v.  Gould  (11  Cush.  57)  the  rule 
was  applied  where  a  surety  sought  to  plead  his  own  coercion  as 


490  DURESS. 

growing  out  of  the  fact  that  his  principal  was  suffering  illegal  im- 
prisonment as  a  defense  to  an  action  brought  upon  the  obligation 
of  the  surety  given  to  secure  his  principal's  release.  But  the  rule  in 
Cro.  Jac.  has  been  modified  so  as  to  allow  a  father  to  plead  the 
duress  of  a  child,  or  a  husband  the  duress  of  his  wife,  or  a  child 
the  duress  of  the  parent.  Wayne  v.  Sands,  i  Freeman  351 ;  Bay- 
ley  V.  Clare,  2  Browne  276 ;  i  Roll.  Abr.  687 ;  Jacob's  Law  Die, 
"Duress." 

We  see  no  ground  upon  which  it  can  be  held  that  the  plaintiff  in 
this  case  was  not  in  par  delictum  in  the  transaction  with  the  defend- 
ants. So  far  as  the  complaint  shows  he  was  a  volunteer  in  entering 
into  the  fraudulent  agreement.  It  is  not  even  alleged  that  he  acted 
at  the  request  of  the  debtor.  And  in  respect  to  the  claim  of  duress, 
upon  which  Smith  v.  Bromley  was  decided,  we  are  of  opinion  that 
the  doctrine  of  that  and  the  subsequent  cases  referred  to  can  only 
be  asserted  in  behalf  of  the  debtor  himself,  or  of  a  wife  or  husband, 
or  near  relative  of  the  blood  of  the  debtor,  who  intervenes  in  his 
behalf,  and  that  a  person  in  the  situation  of  the  plaintiff,  remotely 
related  by  marriage,  with  the  debtor,  who  pays  money  to  a  creditor 
to  induce  him  to  sign  a  composition,  cannot  be  deemed  to  have  paid 
under  duress  by  reason  simply  of  that  relationship,  or  of  the  interest 
which  he  might  naturally  take  in  his  relative's  affairs. 

The  plaintiff  cannot  complain  because  the  defendants  negotiated 
the  note,  so  as  to  shut  out  the  defense  which  he  would  have  had  to 
it  in  the  hands  of  the  defendants.  The  negotiation  of  the  note  was 
contemplated  when  it  was  given,  as  the  words  of  negotiability  show. 
It  is  possible  that  the  plaintiff,  while  the  note  was  held  by  the  de- 
fendants, might  have  maintained  an  action  to  restrain  the  transfer, 
and  to  compel  its  cancellation.  Jackson  v.  Mitchell,  13  Ves.  58J. 
But  it  is  unnecessary  to  determine  that  question  in  this  case.  The 
plaintiff  having  paid  the  note,  although  under  the  coercion  resulting 
from  the  transfer,  the  law  leaves  him  where  the  transaction  has  left 
him. 

The  judgment  should  be  affirmed. 

All  concur.  Judgment  affirmed. 


iii.  N Oil- performance  of  a  Public  Duty, 

I.    PUBLIC    OFFICERS. 

LOVELL  V.  SIMPSON. 

3  Esp.   153. — 1800. 

TiTTS  was  an  action  of  debt  under  the  statute  32  Geo.  II,  ch.  28, 
brought  by  the  plaintiff  to  recover  from  the  defendant,  who  was  a 
sheriff's  officer,  the  amount  of  several  penalties  given  by  that  statute, 
for  taking  more  money  on  an  arrest  than  is  allowed  by  that  act. 


NON-PERFORMAXCE   OF    PUELIC   DUTY.  49I 

The  plaintiff  gave  in  evidence,  that  having  Ijeen  arrested  by  the  de- 
fendant, on  a  writ  marked  for  bail  for  500/,  he  gave  bail  to  the 
sheriff;  that  the  defendant  charged  five  guineas  for  the  bail  bond 
and  civility  money ;  and  that  two  guineas  and  a  half  were  actually 
paid.  By  the  stat.  32  Geo.  II.  ch.  28,  the  officer  is  allowed  to  take  the 
sum  of  half  a  guinea  for  the  bail  bond,  and  no  more.  The  declara- 
tion contained  the  common  money  counts  in  debt,  for  money  had 
and  received,  and  money  paid,  as  well  as  the  counts  for  the  penal- 
ties. The  plaintiff  having  omitted  to  subpoena  the  witness  to  the 
bail  bond,  and  the  extortion  being  laid  to  have  been  committed  in 
taking  the  money  for  the  bail  bond,  in  all  the  counts  for  the  penal- 
ties, the  plaintiff  was  under  the  necessity  of  abandoning  those  counts. 
His  counsel  then  proposed  to  go  on  the  count  for  money  had  and 
received. 

Mingay,  for  the  defendant,  contended  that  the  plaintiff  should 
be  non-suited,  and  not  be  permitted  to  go  into  evidence  on  the  money 
counts.  That  the  action  having  been  brought  for  the  penalties  for 
the  breach  of  a  statute,  and  the  plaintiff  having  failed  in  establish- 
ing the  offense,  should  not  be  allowed  to  go  for  the  money  taken  by 
the  officer,  in  the  form  of  money  had  and  received ;  inasmuch  as  the 
money,  if  improperly  or  illegally  taken,  subjected  him  to  the  penalties 
which  the  plaintiff  had  failed  in  establishing. 

Lord  Kenyon  ruled,  that  the  plaintiff  might  recover  on  the  money 
counts ;  that  it  was  money  extorted  from  the  plaintiff  by  the  defend- 
ant taking  an  advantage  of  his  situation,  and  under  a  claim  of  right, 
which  the  plaintiff  was  unable  to  resist.  That  the  claim  arose  under 
a  settled  rule  of  law,  which  entitled  a  party  to  recover  back  money 
extorted  from  him,  which  was  the  case  here ;  and  the  circumstance 
of  the  defendant's  thereby  incurring  a  penalty  could  not  vary  it. 

Verdict  for  the  plaintiff  for  the  money  paid,  deducting  the  sum 
allowed  by  law  to  the  defendant.^ 

*  Accord,  Swift  Co.  v.  United  States,  iii  U.  S.  22  (1884),  in  which  the 
court  says  (p.  30)  :  "If  a  person  illegally  claims  a  fee  colore  officii,  the  pay- 
ment is  not  voluntary  so  as  to  preclude  the  party  from  recovering  it  back. 
Morgan  v.  Palmer,  2  B.  &  C.  729.  In  Steele  v.  Williams,  8  Exch.  625,  Mar- 
tin, B.,  said  :  'If  a  statute  prescribes  certain  fees  for  certain  services,  and  a 
party  assuming  to  act  under  it  insists  upon  having  more,  the  payment  can- 
not be  said  to  be  voluntary.'  'The  common  principle,'  says  IMr.  Pollock,  Prin- 
ciples of  Contract  523,  'is,  that  if  a  man  chooses  to  give  away  his  money,  or 
take  his  chances  whether  he  is  giving  it  away  or  not,  he  cannot  afterward 
change  his  mind ;  but  it  is  open  to  him  to  show  that  he  supposed  the  facts  to 
be  otherwise,  or  that  he  really  had  no  choice.'  Addison  on  Contracts  1043 ; 
Alton  V.  Durant,  2  Strobh.  257." 

And  see  also  American  Steamship  Co.  v.  Young,  89  Pa.  186  (1879),  in  which 
the  court  says  (p.  191):  "We  think  that  sound  public  policy  requires  us  to 
hold  that  a  public  officer  who,  virtutc  officii,  demands  and  takes  as  fees  for  his 
services  what  is  not  authorized  or  more  than  is  allowed  by  law,  should  be  com- 
oelled  to  make  restitution.  He  and  the  public  who  have  business  to  transact 
with  him  do  not  stand  upon  an  equal  footing.  It  is  his  special  business  to  be 
conversant  with  the  law  under  which  he  acts,  and  to  know  precisely  how  much 
he  is  authorized  to  demand  for  his  services;  but  with  them  it  is  different.  They 
have  neither  the  time  nor  the  opportunity  of  acquiring  the  information  neces- 


492  DURESS.  V    V 

/    / 

\      BRUMAGIM  ET  AL.  V.  TILLINGHAST.  -;,  '^ 

\, 
i8  Cal.  265— i86i.  s) 

Defendant  filed  a  general  demurrer,  which  the  court  below  sus- 
tained, and  gave  final  judgment  in  his  favor.     Plaintiffs  appeal. 

Field,  C,  J.  delivered  the  opinion  of  the  court;  Baldwin,  J.,  and 
Cope,  J.,  concurring. — The  Act  of  Legislature  of  April,  1858,  amend- 
atory of  the  Act  of  April,  1857,  "to  provide  revenue  for  the  support 
of  the  government  of  this  State,  from  a  tax  to  be  levied  and  col- 
lected from  foreign  and  inland  bills,  and  other  matters,"  imposes 
upon  bills  of  lading  for  the  transportation  of  gold  or  silver  coin, 
gold  dust,  or  gold  or  silver  in  bars,  or  other  form,  from  any  point 
or  place  in  this  State  to  any  point  or  place  without  the  State,  a  stamp 
tax  of  thirty  cents  on  the  first  one  hundred  dollars  of  the  value  of 
the  property  transported,  and  of  one-fifth  of  one  per  cent,  upon 
the  amount  of  its  valuation  exceeding  that  sum,  and  requires  that 
there  shall  be  attached  to  each  bill  of  lading,  or  stamped  thereon,  a 
stamp  or  stamps  expressing  in  value  the  amount  of  such  tax.  The 
original  Act  of  1857  constitutes  the  governor,  treasurer,  and  secre- 
tary of  state,  comimissioners  of  stamp  duties,  and,  in  substance, 
provides  that  they  shall  cause  stamped  paper  or  stamps  correspond- 
ing with  the  several  rates  of  duties  prescribed  by  the  act,  to  be  pre- 
pared and  delivered  to  the  controller,  to  be  by  him  distributed  to 
the  several  county  treasurers  for  sale.  The  original  act  also  de- 
clares all  contracts  or  instruments  of  writing  executed  after  the  first 
of  July,  1857,  charged  with  the  payment  of  a  stamp  tax,  absolutely 
void  unless  stamped  or  marked  as  prescribed  therein,  and  makes  the 
issuance  of  any  such  instruments  without  the  stamp  a  misdemeanor 
punishable  by  fine.  The  plaintiffs  are  bankers,  engaged  in  the  reg- 
ular course  of  their  business  in  shipping  gold  and  silver  coin,  gold 
and  silver  in  bars,  and  gold  dust  from  the  port  of  San  Francisco, 
in  this  State,  to  the  port  of  New  York,  in  the  State  of  New  York, 
and  to  foreign  ports ;  and  the  present  action  is  brought  to  recover 
$2,031,  alleged  to  have  been  paid  by  them  to  the  defendant,  who 
was  treasurer  of  the  city  and  county  of  San  Francisco,  in  the  pur- 
chase of  stamps  to  be  affixed  to  bills  of  lading  taken  upon  shipments 
made  by  them  from  the  port  of  San  Francisco  to  the  port  of  New 
York. 

Two  questions  are  presented  for  determination  by  the  demurrer: 
1st,  Whether  the  Act  of  1858,  referred  to,  so  far  as  it  imposes  a 
stamp  tax  upon  the  bills  of  lading  mentioned,  is  in  conflict  with  the 
Constitution  of  the  United  States ;  and  2d,  If  the  act  is  held  to  be  in 

sary  to  enable  them  to  know  whether  he  is  claiming  too  much  or  not ;  and,  as 
a  general  rule,  relying  on  his  honesty  and  integrity,  they  acquiesce  in  his  de- 
mands." And  see  also,  in  accord.  Ripley  v.  Gels'ton,  9  Johns.  (N.  Y.)  201 
(1812)  ;  Clinton  v.  Strong,  g  Johns.  (N.  Y.)  370  (1812). 


NON-PERFORMANCE   OF    PUBLIC   DUTY.  493 

conflict  with  the  Constitution  of  the  United  States,  whether  upon  the 
facts  stated  in  the  complaint,  the  plaintiffs  arc  entitled  to  recover 
from  the  defendant  the  amounts  paid  by  them. 

1.  Upon  the  first  question  presented  we  have  the  decision  of  the 
Supreme  Court  of  the  United  States,  rendered  since  the  appeal  in 
the  present  case  has  been  pending.  In  Almy  v.  The  People  of  the 
State  of  California,  decided  at  the  December  term,^  the  constitu- 
tionality of  the  act  of  this  State  was  considered — indeed,  constituted 
the  sole  question  before  that  Court.     =t:     =i:     *     * 

This  decision  of  the  Sui)reme  Court  is  conclusive  upon  us,  and  we 
therefore  hold  in  accordance  with  it,  that  the  Act  of  April,  1858,  so 
far  as  it  imposes  a  tax  upon  bills  of  lading  for  the  transportation  of 
gold  and  silver  from  any  point  in  this  State  to  any  point  without  the 
State,  4s-unconstitutional  and  void.  And,  as  a  matter  of  course,  the 
provisions  of  the  original  Act  of  1857  for  the  enforcement  of  the 
stamp  tax,  must  be  restricted  in  their  application  to  other  instru- 
ments than  such  bills  of  lading. 

2.  The  solution  of  the  second  question  presented  depends  upon 
the  character  of  the  payments — whether  they  were  voluntary,  or 
made  under  compulsion  or  coercion.  Notwithstanding  some  doubts 
suggested  in  the  early  cases  on  the  subject,  the  rule  is  at  this  day 
well  settled  that  rnoneys  voluntarily  paid  upon  a  claim  of  right, 
with  full^knowledge  of  all  the  facts, 'cannot  be  recovered  back  merely 
because  the  party  at  the  time  of  payment  was  ignorant  of  or  mis- 
took tKfillaw  as  to  his  liability.  The  illegality  of  the  demand  paid 
constitutes  of  itself  no  ground  for  relief.  There  must  be  in  addition, 
some  compulsion  or  coercion  attending  its  assertion,  which  controls 
the  conduct  of  the  party  making  the  payment.     *     *     *     * 

What  shall  constitute  the  compulsion  or  coercion  which  the  law 
will  recognize  as  sufficient  to  render  payments  invokmtary  may  often 
be  a  question  of  difficulty.  It  may  be  said  in  general  that  there 
must  be  some  actual  or  threatened  exercise  of  power  possessed,  or 
supposed  to  be  possessed,  by  the  party  exacting  or  receiving  the  pay- 
ment over  the  person  or  property  of  the  party  making  the  payment, 
from  which  the  latter  has  no  other  means  of  immediate  relief  than 
by  advancing  the  money.  In  Forbes  v.  Appleton,  5  Cush.  117,  a 
payment  of  money  was  made  in  order  to  prevent  the  obligee  in  a 
bottomry  bond  from  attempting  to  enforce  the  same  by  taking  pos- 
session of  the  vessel,  and  the  court  held  that  it  was  not  a  compul- 
sory but  a  voluntary  payment,  and  if  the  money  was  not  due,  the 
debtor  had  no  right  of  action  to  recover  it  back,  although  he  de- 
clared at  the  time  of  payment  that  he  made  it  under  coercion,  and 
intended  to  reclaim  the  same  by  action.  "The  principle  of  law," 
said  the  court,  "is  a  very  familiar  and  salutary  one,  that,  where  a 
person  with  full  knowledge  of  all  the  circumstances,  paid  money 
voluntarily  under  a  claim  of  right,  he  shall  not  afterwards  recover 
back  the  money  so  paid.     To  avoid  the  application  of  the  rule  in  the 

*24  How.  (U.  S.)   169. 


494  DURESS. 

present  case,  it  must  appear  that  the  plaintiff  was  compelled,  by 
duress  of  his  person  or  goods,  to  pay  the  same.  In  general,  the 
cases  that  have  been  treated  as  exceptions  are  cases  where  the  pos- 
session of  the  property  upon  which  the  lien  was  claimed  was  already 
in  the  party  demanding  the  money,  or  cases  in  which  the  party  had 
no  other  means  to  save  himself  from  imprisonment,  or  his  property 
from  sale,  on  execution  or  warrant  of  distress,  but  by  paying  the 
money  demanded."  In  the  case  of  Mayor  and  City  Council  of  Balti- 
more V.  Lefferman,  4  Gill  425,  the  Court  of  Appeals  of  Maryland 
concludes  an  examination  of  numerous  authorities  on  the  subject  of 
compulsory  payments,  by  stating  that  it  considers  "the  doctrine  as 
established,  that  a  payment  is  not  to  be  regarded  as  compulsory  un- 
less made  to  emancipate  the  person  or  property  from  an  actual  and 
existing  duress,  imposed  upon  it  ^3;  the  party  to  whom  the  money 
is  paid."  And  in  Mays  v.  Cincinnati,  i  Ohio  Rep.  268,  the  Supreme 
Court  of  Ohio  concludes  a  like  examination  by  observing,  that  "this 
unbroken  chain  of  authority  seems  to  warrant  the  conclusion  that 
a  payment  of  money  upon  an  illegal  or  unjust  demand,  when  the 
party  is  advised  of  all  the  facts,  can  only  be  considered  involuntary 
when  it  is  made  to  procure  the  release  of  the  person  or  property  of 
the  party  from  detention,  or  when  the  other  party  is  armed  with  ap- 
parent authority  to  seize  upon  either,  and  the  payment  is  made 
to  prevent  it." 

Tested  by  these  authorities,  the  question  presented  is  one  of  easy 
solution.  The  complaint  does  not  show  that  the  payments  to  the 
defendant  for  the  stamps  were  the  result  of  any  coercion  on  his  part. 
It  only  alleges  that  in  the  ordinary  course  of  trade,  shipments  of 
gold  and  silver  to  New  York  were  made  by  lines  of  ocean  steamers 
plying  between  San  Francisco  and  Panama,  and  connecting  with 
lines  of  steamers  plying  between  Aspinwall  and  New  York ;  that 
they  afforded  the  only  safe  and  speedy  means  by  which  such  ship- 
ments could  be  made ;  that  the  owners,  agents,  and  masters  of  these 
lines  refused  to  issue  bills  of  lading,  unless  the  same  were  first 
stamped,  in  pursuance  of  the  act  of  1858 ;  that  in  order  to  procure 
bills  of  lading  for  shipments  made  by  them,  the  plaintiff's  were  forced 
to  apply  to  the  defendant,  as  county  treasurer,  for  the  purchase  of 
the  requisite  stamps  to  be  affixed  to  the  bills,  and  did  purchase  the 
same  from  him  at  the  prices  designated  in  the  Act,  which  he  de- 
manded ;  that  they  protested  at  the  time  against  the  right  of  the  de- 
fendant to  exact  payment  for  the  stamps,  and  against  the  acts  of  the 
Legislature  as  unconstitutional  and  void,  and  gave  notice  that  they 
would  hold  him  responsible  for  the  moneys  paid.  No  facts  are  here 
stated  showing  any  compulsion  or  coercion  by  the  defendant.  The 
only  compulsion  or  coercion,  in  fact,  alleged,  comes  from  another 
source — from  the  masters,  agents,  and  owners  of  the  steamers,  from 
their  refusal  to  issue  bills  of  lading  luiless  previously  stamped.  But 
this  conduct  of  third  jiartics  cannot  be  resorted  to  for  the  purpose 
of  fastening  liability  upon  the  defendant.  Unless  he  has  personally 
done  some  act  which  the  law  condemns,  he  cannot  be  charged,  v.o 


NON-PERFORMAXCE   OF    PUBLIC   DUTY.  495 

matter  how  arbitrarily  or  improperly  others  may  have  acted.  Sup- 
pose the  owners  or  agents  of  the  steamers  had  refused  to  issue  the 
bills  of  lading  required  until  the  plaintiffs  made  purchases  of  other 
articles  than  stamps,  or  bestowed  certain  bounties,  and  they  had  com- 
plied with  these  conditions,  no  one  would  pretend  that  an  action 
could  subsequently  be  maintained  by  the  plaintiffs  against  the  ven- 
dors in  the  one  case,  or  the  recipients  of  the  bounties  in  the  other, 
to  recover  back  the  money  with  which  they  had  parted.  But  the 
case  supposed  and  the  case  at  bar  are  not  materially  different.  The 
refusal  to  issue  the  bills  of  lading  might  as  well  have  been  placed 
on  the  one  ground  as  the  other.  The  existence  of  the  Act  of  1858, 
it  is  true,  induced  the  conduct  of  the  agents  and  owners  of  the 
steamers,  but  the  justification  of  their  conduct  falls  with  the  consti- 
tutionality of  the  act.  That  conduct,  as  we  have  observed,  could 
not  afifect  the  action  of  the  defendant.  He  was  entrusted  with  a 
certain  quantity  of  stamps,  and  authorized  to  dispose  of  them  to 
applicants  at  a  fixed  price.  If  the  price  were  paid,  he  delivered  the 
stamps,  but  if  not  paid,  he  retained  them  in  his  possession.  The' 
plaintiffs  were  at  liberty,  so  far  as  he  was  concerned,  to  purchase  or  1 
decline  purchasing.  He  was  not  invested  with  power  to  compel  ; 
them  to  purchase,  nor  to  punish  them  if  they  chose  to  refrain  from 
purchasing.  Nor  was  he  in  possession  of  any  of  their  property,  the( 
delivery  of  which  they  could  not  obtain  without  such  pavment. 
Under  these  circumstances,  the  payments  made  by  them  were  in  the  | 
eye  of  the  law,  voluntary  payments.  They  were  acquainted  with  all  \ 
the  facts,  and  the  case  was  not  one  which  admitted  of  false  repre- 
sentations as  to  the  position  or  power  of  the  defendant.  T'le  gist 
of  the  whole  matter,  as  alleged  by  the  plaintiffs,  is  simply  this :  They 
doubted  as  to  the  constitutionality  of  the  Act  of  the  Legislature,  and 
therefore  voluntarily  purchased  the  stamps,  preferring  this  course, 
as  one  of  convenience,  to  taking  proceedings  against  the  owners  or 
agents  of  the  vessels  who  refused  the  bills  of  lading  unless  stamped. 
The  protest  accompanying  the  purchase  and  payment  of  the  money  \ 
did  not  change  the  character  of  the  transaction.  A  protest  is  avail- 
able, as  we  said  in  McMillan  v.  Richards,  9  Cal.  417,  only  in  cases  of 
payment  under  duress  or  coercion,  or  where  undue  advantage  is  taken  ; 
of  one's  situation.  In  such  cases  its  object  is  to  take  from  the  pay- 
ment its  voluntary  character,  and  thus  conserve  to  the  party  a  right 
of  action  to  recover  back  the  money.  But  where  no  such  compul- 
sion exists,  or  advantage  is  taken,  there  is  no  case  for  its  interpo- 
sition, and  the  character  of  the  payment  is  unaffected  by  it.  Fleet- 
wood V.  The  City  of  New  York,  4  Sandf.  476.  If  the  payment 
were  in  truth  voluntary,  no  language  used  on  the  occasion  would 
change  its  character. 

Judgment  affirmed. 


DURESS. 

r^  NIEDERMEYER  v.  CURATORS  OF  THE  UNIVERSITY  OF 

MISSOURI.  ^ '  ^ 

i  ' 

6i  Mo.  App.  654.-1895.  vl 

Smith,  P.  J. — The  catalogue  of  the  University  of  the  State  for 
the  years  1891  and  1892  contained  the  following  paragraph,  amongst 
others : 

"Tuition  Charges  and  Expenses. — Applicants  for  admission  to 
any  of  the  classes  of  the  law  department,  or  as  special  students  of 
elective  courses,  are  required  to  pay  the  sum  of  fifty  dollars  for  the 
first  year's  attendance  and  forty  dollars  for  each  successive  year. 
"(Signed)  Alexander  Martin, 

"Dean,  Columbia,  Mo." 

It  appears  that  the  plaintiff  examined  the  said  catalogue,  includ- 
ing the  above  quoted  paragraph,  after  which  he  concluded  to  enter 
the  University  with  the  view  of  availing  himself  of  the  entire  course 
of  legal  study  there  specified.  Accordingly,  in  October,  1892,  he 
paid  the  treasurer  of  the  University  the  sum  of  $50  and  was  admitted 
to  the  junior  class  of  the  law  department  for  the  year  ending  June, 

1893- 

In  September,  1893,  the  plaintiff,  desiring  admission  to  the  senior 
class  of  said  law  department  for  the  session  ending  June,  1894, 
offered  to  pay  said  treasurer  $40  tuition  for  that  year,  which  offer 
was  rejected,  and  finding  that  the  sole  condition  of  admission  was 
the  prepayment  of  a  tuition  fee  of  $50,  he  paid  that  amount  under 
protest,  and  was  thereupon  given  a  matriculation  card.  In  the 
catalogue  of  1893  and  1894  is  a  paragraph  to  the  effect  that  law 
students  are  required  to  pay  $50  tuition  per  year.  On  substantially 
the  foregoing  state  of  facts,  the  plaintiff  brought  this  suit  before  a 
justice  of  the  peace  to  recover  $10  for  "excessive  tuition  collected 
for  law  department,  1893  and  1894."  There  was  a  trial  in  the  court 
below,  where  the  cause  was  removed  by  appeal,  which  resulted  in 
judgment  for  the  defendant,  from  which  plaintiff  has  appealed. 

The  paragraph  in  the  catalogue  of  1892  and  1893  was  by  its  very 
terms  a  public  offer  to  admit  persons  as  students  to  any  of  the  classes 
of  the  law  department  of  the  University,  on  payment  of  $50  for  the 
first  year  and  v$40  for  each  successive  year.  The  plaintiff's  payment 
of  $50  and  receipt  of  his  matriculation  card  for  the  years  1892  and 
1893  constituted  an  implied  acceptance  and  also  notice  of  such  ac- 
ceptance. The  contractual  relations  created  between  the  parties  thus 
became  complete  and  binding.  Society  v.  Broomfield,  102  Ind.  146; 
Bishop  on  Contracts,  sec.  322 ;  Wharton  on  Contracts,  sec.  241 ;  Love- 
joy  V.  Railroad,  53  Mo.  App.  386. 

Difl  the  acceptance  by  plaintiff  of  the  defendant's  offer  constitute  an 
entire  contract  ?  To  determine  this  requires  a  construction  of  the  con- 
tract, and  in  doing  so  we  must  not  only  consider  the  language  cm- 
ployed  and  the  subject  matter,  but  view  them  in  the  light  of  the 


^/V 


NON-PERFORMANCE   OF    PUBLIC   DUTY,  497 

circumstances,  to  ascertain  what  the  parties  actually  understood  or 
intended.  2  Parsons  on  Contracts  (7  ed.)  517.  It  is  manifest 
that  the  purpose  of  the  defendants  was  to  secure  the  attendance  of 
students  who  would  complete  the  entire  course  by  offering  them  as 
an  inducement  a  reduction  of  the  tuition  for  the  successive  years 
which  would  be  required  to  complete  the  entire  course.  The  un- 
disputed evidence  shows  that  the  plaintiff  entered  for  the  purpose 
of  taking,  and  did  take,  the  entire  course.  In  view  of  the  language 
of  the  offer  and  the  facts  just  stated,  we  think  that  the  contract  be- 
tween the  parties  was  an  entirety. 

If,  as  suggested  by  the  plaintiff,  it  should  be  contended  the  offer 
and  acceptance  is  a  contract  for  the  first  year,  with  an  option  to 
take  the  second  year  by  paying  $40,  then  it  is  binding  on  defend- 
ants, as  the  plaintiff  not  only  appeared  and  demanded  the  right  to 
enter  under  the  option,  before  the  term  expired,  but  paid  a  valuable 
consideration  for  the  option,  which  could  not  be  withdrawn.  Bishop 
on  Contracts  (ed.  1887),  section  325  ;  Tiedeman  on  Sales,  section  41  ; 
Cherry  v.  Cook,  7  Wis.  413. 

But,  suppose  it  be  conceded  that  under  the  contract  existing  be- 
tween plaintiff  and  defendants,  the  former  was  entitled  to  admission 
to  the  senior  class  of  law  department,  for  the  term  ending  in  June, 
1894,  on  payment  of  a  tuition  fee  of  $40;  and  suppose,  too,  it  be 
further  conceded  that  the  defendants,  by  their  treasurer,  demanded 
of  the  plaintiff  the  payment  of  the  tuition  of  $50  for  said  year,  as  a 
condition  precedent  to  his  admission,  and  that  plaintiff  paid  the  ex- 
cess above  $40  under  protest,  yet  can  he  recover  back  such  excess 
in  an  action  of  assumpsit  for  money  had  and  received  ? 

[Then  follozvs  a  review  or  citation  of  the  follozmng  cases:  Bris- 
bane V.  Dacres,  5  Taunt.  143 ;  Buchanan  v.  Sahlcin,  9  Mo.  App.  563  ; 
Boston  V.  Boston,  4  Mete.  181 ;  Wolff  v.  Marshall,  52  Mo.  171  ; 
Magnire  v.  Savings  Ass'n,  62  Mo.  344 ;  Westlake  v.  St.  Louis,  yj 
Mo.  47;  Warrensburg  v.  Miller,  yy  Mo.  56;  Loring  v.  St.  Louis,  80 
Mo.  461.] 

Although  in  the  present  case  the  payment  of  the  excess  was  not 
made  to  preserve  the  inviolability  of  the  person,  or  to  redeem  prop- 
erty illegally  held,  or  to  prevent  its  unlawful  seizure,  yet  it  was  made 
to  secure  admission.  It  was  paid  to  remove  what  was  otherwise  an  in- 
surmountable barrier  to  the  completion  of  plaintiff's  legal  education 
in  the  University  of  his  state ;  to  avoid  being  compelled  to  go  abroad 
to  seek  university  advantages,  amply  provided  by  his  own  state  for 
all  its  citizens  ;  to  enable  plaintiff  to  gain  admission  to  the  senior 
class  of  the  law  department  and  thus  speedily  obtain  his  degree ; 
and  to  prevent  an  interference  and  break  in  the  course  of  his  legal 
education,  and  the  loss  of  money  expended  in  reaching  the  Univer- 
sity and  providing  textbooks,  etc.  The  plaintiff  and  defendants  were 
not  on  equal  terms.  The  defendants  possessed,  and  in  effect  threat- 
ened to  exercise,  the  power  of  excluding  the  plaintiff  unless  the 
illegal  demand  of  their  treasurer  met  with  compliance. 
Woodruff's  Cases — 32 


498  DURESS. 

Under  these  circumstances,  can  it  be  said  the  payment  was  vokin- 
tary?  Was  it  not  under  moral  duress  ?  Was  not  the  plaintiff  under 
as  much  compulsion  as  if  the  defendants  had  been  armed  with  a 
warrant  for  the  arrest  of  plaintiff  or  the  seizure  of  his  goods?  If 
the  fear  of  seizure  of  goods,  as  in  62  Mo.,  supra,  would  make  the 
payment  of  the  extorsive  excess,  if  made  under  objection,  compul- 
sive and  involuntary,  it  would  seem  that  a  payment  made  to  prevent 
the  incalculable  injury  already  indicated  must  be  regarded  in  the 
same  light.  According  to  some  of  the  authorities  within  and  with- 
out this  state,  from  which  we  have  quoted,  the  plaintiff's  action  can- 
not be  maintained ;  but  according  to  the  most  recent  rulings  of  the 
supreme  court  just  referred  to,  it  would  appear  that  it  can. 

After  the  proposition  contained  in  the  catalogue  of  1892  and  1893 
had  been  accepted  by  plaintiff,  and  the  rights  of  the  plaintiff'  had 
thereby  become  fixed,  it  was  not  within  the  power  of  the  defend- 
ants to  alter  or  abridge  those  rights  by  withdrawing  the  proposition 
and  publishing  that  contained  in  the  catalogue  of  1893  ^"^  1894. 
And  whether  plaintiff  had  notice  of  that  fact  before  he  applied  for 
admission  to  the  second  year's  course  or  not,  it  seems  to  us,  can 
make  no  difference.  The  proposition  contained  in  the  catalogue  of 
1892  and  1893  was  that  of  the  state,  and,  when  accepted,  good  faith 
and  fair  dealing  required  that  it  should  be  carried  out  on  the  part 
of  the  state  to  the  letter.  An  enlightened  and  progressive  state  can 
ill  afford  to  trifle  with  the  rights  of  the  citizen  in  the  slightest  de- 
gree. Tlie  court  erred  in  rejecting  the  theory  contained  in  the 
plaintiff's  instructions  and  in  adopting  that  contained  in  those  of 
the  defendants. 

The  judgment  must  be  reversed  and  cause  remanded,  with  direc- 
tions to  the  circuit  court  to  enter  judgment  for  the  plaintiff.  All 
concur. 


2.   COMMON  CARRIERS  AND  PUBLIC  SERVICE  CORPORATIONS. 

KENNETH  &  GIBSON  v.  SOUTH  CAROLINA  R.  R. 
IS  Rich.  L.  (S.  C.)  284.— 1868. 

On  motion  to  set  aside  order  of  nonsuit.   Motion  dismissed. 

Inglis,  a.  J. — The  plaintiffs,  Kenneth  &  Gibson,  are  merchants 
of  Columbia,  engaged,  inter  alia,  in  buying  cotton  there  and  selling 
the  same,  by  their  agents,  in  Charleston,  or  sending  it  through  that 
port  for  sale  abroad.  During  the  period  of  about  fifteen  months, 
extending  from  ist  July,  1865,  to  ist  October,  1866,  they  forwarded 
by  defendant's  road,  in  various  parcels,  from  time  to  time,  to  differ- 
ent consignees,  in  all,  nineteen  hundred  and  thirty-seven  bales  of 
cotton.  The  defendant's  charges  for  transportation  were,  in  every 
instance,  paid  by  the  consignee  in  Charleston,  after  the  delivery  of 


NON-PERFORMANCE   OF    PUBLIC   DUTY.  499 

the  cotton  and  without  objection.  The  rates  of  charges  varied  from 
two  dollars  to  five  dollars  per  bale,  at  different  dates  during  the 
whole  period,  and  the  aggregate  sum  paid  was  about  eight  thousand 
five  hundred  dollars  ($8,500).  The  plaintiffs  allege  that  the  rates 
of  charges  for  transportation,  which  they  have  thus  paid,  exceed 
those  which  the  defendant  is,  by  law,  permitted  to  exact,  by  a  large 
sum,  perhaps  some  four  thousand  dollars  or  more  in  the  aggregate, 
and  in  this  action  of  assumpsit  for  money  had  and  received  by  the 
defendant  for  the  use  of  the  plaintiffs  they  seek  to  recover  back 
this  excess.     *     *     *     * 

In  the  present  case  the  objectionable  charges  were  not  exacted  un- 
til after  the  service  in  each  instance  had  been  fully  rendered,  and  the 
plaintiff  was,  for  the  particular  transaction,  out  of  the  power  of  the 
defendant.  An  easy  mode  of  insuring  the  protection  designed  by 
the  statute  was,  after  tendering  the  amount  that  might  be  lawfully 
demanded,  and  refusing  more,  to  stand  an  action  if  the  company  had 
chosen  to  bring  one.  The  defendant's  act  of  demanding  and  taking 
more  than  the  maximum  of  charges  prescribed  by  the  statute  is 
illegal  only  in  this,  that  the  company  therein  exceeded  their  rightful 
power  and  required  that  which  they  had  no  authority  by  law  to 
exact.  And  the  case  is  brought  back  within  the  operation  of  the 
general  doctrine.  If  the  defendant,  by  withholding  from  any  one  his 
property  or  right,  wring  from  his  reluctant  and  protesting  will 
money  to  which  the  company  has  no  lawful  right,  it  cannot,  ex  aequo 
et  bono,  be  retained,  but  may  be  recovered  back  in  this  form  of 
action.  But  if  one,  with  full  knowledge  of  all  material  facts  volun- 
tarily pays  that  which  could  not  be  lawfully  demanded  of  him,  he 
has  thrown  away  his  shield,  and  must  abide  the  consequences ;  he 
cannot  recover  the  money.  He  has  waived  the  protection  which 
the  law  offered  him.  His  free  and  intelligent  assent  has  made  that 
right  as  between  them,  which  would  have  else  been  wrong.  Volenti 
n on  -fit  injuria.     *     *     *     * 


POTOMAC  COAL  CO.  v.  CUMBERLAND  AND  PENN.  R.  R. 

38  Md.  226. — 1873. 

This  was  an  action  of  assumpsit  by  the  appellant  against  the  ap- 
pellee, to  recover  freights,  alleged  to  have  been  exacted  by  the  latter 
from  the  former,  for  the  transportation  of  coal  on  its  railroad,  in 
excess  of  the  rates,  charged  other  parties.  The  case  was  tried  be- 
fore a  jury,  upon  documentary  evidence  and  an  agreed  statement 
of  facts,  and  resulted  in  a  verdict  for  the  appellee  under  an  instruc- 
tion from  the  Court,  that  upon  the  agreed  statement  of  facts,  the 
plaintiff  (appellant)  was  not  entitled  to  recover. 

Grason,  J. — This  is  an  action  of  indebitatus  assumpsit  for  money 
had  and  received  to  the  plaintiff's  use,  and  is  brought  to  recover  the 


500  DURESS. 

sum  of  forty-two  thousand,  three  hundred  and  seventy-eight  dollars 
and  twenty-one  cents,  that  sum  being  the  difference  between  the  sum 
charged .  and  received  from  the  plaintiff,  for  freights  on  its  coal 
transported  over  the  defendant's  road,  from  July  i,  1864,  to  March 
10,  1 87 1,  and  the  amount  the  plaintiff  would  have  had  to  pay  had  it 
been  charged  the  lowest  rate  at  which  the  defendant  transported  coal 
for  any  other  person  or  company  during  the  same  time.  The  case 
was  tried  upon  an  agreed  statement  of  facts,  which  is  set  out  in  the 
record,  and  at  the  trial  the  plaintiff  offered  six  prayers,  all  of  which 
were  rejected,  and  the  court  granted  an  instruction  that  upon  the 
agreed  state  of  facts,  the  plaintiff  was  not  entitled  to  recover,  and 
the  judgment  being  in  favor  of  defendant  the  plaintiff  appealed. 

One  of  the  grounds  relied  upon  by  appellee's  counsel  for  sustain- 
ing the  rulings  of  the  court  below  is,  that  the  payments  of  the 
freights  charged  by  the  appellee  were  voluntarily  made  by  the  appel- 
lant, and  therefore  cannot  be  now  recovered,  even  conceding  that  they 
were  illegally  charged.  This  question  has  been  clearly  and  definitely 
settled  in  this  State  by  the  cases  of  Mayor  and  City  Council  of  Balti- 
more V.  Lefferman,  4  Gill  431 ;  John  B.  Morris  v.  The  Mayor  and 
City  Council  of  Baltimore,  5  Gill  247,  and  Lester  v.  The  Mayor  and 
City  Council  of  Baltimore,  29  Md.  418. 

In  the  first  of  these  cases  Lefferman  had  received  a  notice  from 
the  city  authorities  to  build  a  stone  wall  upon  his  property,  binding 
upon  Jones'  Falls,  and  that,  if  he  failed  to  build  it  by  the  time  speci- 
fied in  the  notice,  they  would  build  it  and  charge  the  cost  to  him. 
Lefferman  accordingly  built  the  wall  and  then  brought  suit  to  re- 
cover from  the  city  the  money  he  had  expended  in  its  erection,  on 
the  ground  that  the  Act  of  1821,  chap.  252,  under  authority  of  which 
the  Mayor  and  City  Council  had  acted,  was  unconstitutional  and 
void.  The  case  was  very  fully  argued  and  the  court,  in  its  opinion, 
says:  "It  is  now  established  by  an  unbroken  series  of  adjudications 
in  the  English  and  American  courts  that  where  money  is  voluntarily 
and  fairly  paid  with  a  full  knowledge  of  the  facts  and  circumstances 
under  which  it  is  demanded,  it  cannot  be  recovered  back  in  a  court 
of  law  upon  the  ground  that  the  payment  was  made  under  a  misap- 
prehension of  the  legal  rights  and  obligations  of  the  party." 

And  on  page  436  of  the  same  case,  the  court  further  say :  "We 
consider,  therefore,  the  doctrine  as  established,  that  a  payment  is  not 
to  be  regarded  as  compulsory,  unless  made  to  emancipate  the  person 
or  property  from  an  actual  and  existing  duress,  imposed  upon  it  by 
the  party  to  whom  the  money  is  paid."  In  the  case  of  Morris  v. 
The  Mayor  &c.  of  Baltimore,  it  appeared  that  Mr.  Morris  paid  taxes 
on  his  bank  stock  at  a  time  to  entitle  him  to  a  deduction  of  a  certain 
percentage  on  the  amount  paid  under  an  ordinance  of  the  city,  and 
that  afterwards  he  brought  suit  to  recover  the  taxes  so  paid,  upon 
the  ground  that  they  had  been  illegally  exacted.  Judge  Martin, 
in  delivering  the  opinion  of  the  Court  of  Appeals,  says,  "After  a 
careful  review  and  examination  of  the  authorities,  the  court  an- 
nounced in  the  case  of  the  Mayor  and  City  Council  against  Leffer- 


1/ 

NON-PERFORMANCE   OF    PUP.LIC   DUTY.  50I 

man,  what  they  regarded  as  the  true  doctrine  upon  the  subject  of 
voluntary  and  compulsory  payments,  as  far  as  it  was  applicable  to 
the  case  before  them ;  and  we  certainly  have  not  been  able  to  per- 
ceive any  reason  for  departing  from  the  propositions  there  enunci- 
ated. On  the  contrary,  we  desire  to  be  understood  as  reaffirming 
the  principles  declared  in  the  Mayor  and  City  Council  and  Leffer- 
man,  and  as  that  case  cannot  be  distinguished  from  the  one  before 
us,  we  should  have  affirmed  the  judgment  of  the  court  below,  even 
if  we  had  considered  the  tax  as  unconstitutional  and  void." 

In  the  case  of  Lester  v.  The  Mayor  &c.  of  Baltimore  [29  Md.  418], 
Lester  paid  his  taxes  after  his  property  had  been  advertised  for  sale 
by  the  collector  of  the  taxes,  yet  this  court  said,  "No  principle  is  bet- 
ter settled  than  that  where  a  person,  with  full  knowledge  of  the  facts, 
voluntarily  pays  a  demand  unjustly  made  upon  him,  though  attempt- 
ed or  threatened  to  be  enforced  by  proceedings,  as  appears  to  have 
been  the  case  in  this  instance,  it  will  not  be  considered  as  paid  by 
compulsion,  and  the  party,  thus  paying,  is  not  entitled  to  recover, 
though  he  may  have  protested  against  the  unfounded  claim  at  the 
"^.ime  of  payment  made." 

In  the  case  now  under  consideration,  it  is  not  claimed  by  the  ap- 
pellant's counsel,  that  the  money  sought  to  be  recovered,  was  paid 
under  a  mistake  of  the  facts,  or  under  circumstances  of  duress, 
fraud  or  extortion.  On  the  contrary,  it  appears  from  the  agreed 
statement  of  facts  that  the  appellee  was  carrying  coal  for  the  appel- 
lant for  nearly  seven  years,  during  the  whole  of  which  time  the 
latter  was  voluntarily  paying  the  freights  demanded.  The  case  is 
therefore  clearly  within  the  principle  decided  by  this  court  in  the 
cases  referred  to,  and  as  that  principle  is  conclusive  against  the  right 
of  the  appellant  to  recover,  it  is  unnecessary,  to  decide  the  other 
points  presented  by  the  record. 

We  concur  in  the  rulings  of  the  Circuit  Court,  and  its  judgment 
must  be  affirmed.  Judgment  affirmed. 


% 


MONONGAHELA  NAVIGATION  CO.  v.  WOOD  et  al. 

194  Pa.  St.  47.— 1899.  (y 


Brown,  J. — The  appellants  insist  that  they  ought  to  recover  back 
excessive  tolls  collected  from  them  by  the  appellee,  and  their  right 
to  do  so  depends  upon  the  facts  developed  on  the  trial.  It  seems 
that  for  a  number  of  years  the  Monongahela  Navigation  Company, 
under  its  corporate  power  to  charge  and  receive  "such  rates  of  toll 
and  charges  as  shall  be  just  and  reasonable,"  had  adopted  a  schedule 
for  coal  and  slack,  the  rate  for  the  latter  being  one-half  of  that 
charged  for  the  former.  Some  years  ago  the  shippers — among 
them  the  appellants — began  to  ship  the  coal  as  it  came  from  the  mine, 
forming  one  mass  and  known  as  "run  of  mine  coal,"  which  had  pre- 


502  DURESS. 

viously  been  separated  into  coal  and  slack.  Upon  such  shipments  the 
Monongahela  Navigation  Company  charged  the  full  coal  rate,  and 
the  shippers,  alleging  and  having  shown  on  the  trial  that  two-fifths 
of  the  run  of  mine  coal  was  slack,  insisted  that  they  ought  to  be 
charged  for  it  one-half  of  the  rate  fixed  for  coal,  or  for  the  whole 
shipment,  but  four-fifths  of  the  coal  rate.  A  number  of  cases  were 
tried  together, — five  in  which  the  Monongahela  Navigation  Com- 
pany was  plaintiff,  seeking  to  recover  unpaid  tolls,  and  two  in 
which  the  shippers,  as  plaintiffs,  sought  to  recover  back  excessive 
charges  paid.  The  specifications  of  error  involve  but  the  single 
question  of  the  right  of  the  shippers  to  recover  back  excessive  tolls 
collected  from  them,  and  we  have  reviewed  all  the  testimony  taken 
on  the  joint  trial  in  considering  and  determining  whether  any  error 
was  committed  by  the  learned  trial  judge  in  his  instructions  to  the 
jury,  which  alone  are  assigned  as  error.  These  instructions  were 
that  the  shippers  could  not  recover  back  the  tolls  alleged  to  have 
been  illegally  paid,  either  in  a  suit  brought  by  them  or  by  way  of 
set-off  in  proceedings  against  them.  The  jury  found  that  the  tolls 
charged  were  unreasonable,  and,  so  far  as  they  had  not  been  paid, 
proper  allowance  was  made  to  the  shippers  in  each  case.  Ought 
they  to  recover  back  what  they  had  paid?  This  depends  upon  the 
conditions  under  which  the  tolls  or  charges  w^ere  paid.  The  appel- 
lants in  every  instance  claimed  the  tolls  as  a  matter  of  right.  It  is 
true  that  complaint  was  made  from  time  to  time  that  the  charges 
were  excessive  and  discriminating,  and  that  other  rates  ought  to  be 
fixed.  Disputes  were  continuous  over  the  tolls  exacted,  and  de- 
mands were  made  for  modifications,  but  in  every  instance  the  com- 
pany insisted  upon  its  right  to  demand  and  receive  v/hat  was  paid, 
and  no  notice  was  ever  given  at  the  time  of  payment  that  the  rates 
charged  were  illegal,  and  that  they  were  involuntarily  paid.  In 
Peebles  v.  City  of  Pittsburgh,  loi  Pa.  St.  304,  our  Brother  Green 
held  that :  "Where  there  is  compulsion,  actual,  present,  potential 
in  inducing  payment  by  force  of  process,  available  for  instant  seiz- 
ure of  person  or  property,  and  the  demand  is  really  illegal,  then 
the  party,  by  giving  notice  of  the  illegality  and  of  his  involuntary 
payment,  can  recover  back  the  money  so  paid  in  an  action  brought 
for  that  purpose."  This,  in  express  terms,  was  reaffirmed  in  Harvey 
v.  Bank,  119  Pa.  St.  212,  13  Atl.  202.  If  the  shippers  had  insisted 
that  illegal  tolls  were  being  exacted  from  them,  as  the  jury  subse- 
quently found,  and  that  they  paid  the  same  involuntarily,  under  pro- 
test, for  the  purj)ose  of  having  their  coal  pass  through  the  locks,  they 
could  have  recovered  any  excess  paid.  In  protesting,  some  notice 
ought  to  have  been  given,  formal  or  informal,  that  the  amount  paid 
would  be  reclaimed.  We  have  failed  to  discover  that  in  any  case, 
either  when  the  tolls  were  paid  or  at  any  other  time,  was  notice 
served  upon  the  company  that  the  shipper  would  demand  repayment 
of  the  excessive  amount  paid.  As  we  have  not  been  persuaded  that 
there  is  any  error  in  the  instructions  complained  of,  but,  on  the  other 


NON-PERFORMANCE   OF    PUBLIC   DUTY.  503 

hand,  after  a  careful  review  of  all  the  testimony,  feel  that  what  was 
said  to  the  jury  was  proper,  all  the  assignments  of  error  are  over- 
ruled, and  the  judgment  is  affirmed. 


Beck,  J.,  in  HEISERMAN  et  al.  v.  BURLINGTON,  C,  R.  &  N. 

RAILWAY. 

63  Iowa  732,  736.— 1884. 

III.  It  will  be  observed  that  this  action  is  not  brought  to  recover 
the  penalties  for  overcharges  by  the  railroad  companies,  provided 
by  chapter  68,  Acts  of  the  Fifteenth  General  Assembly,  in  force 
when  the  acts  complained  of  by  plaintiff  were  done.  The  plaintiffs 
seek  to  recover  the  sums  paid  by  them  in  excess  of  reasonable 
charges,  and  nothing  more.  The  liability  of  defendant  for  money 
collected  for  the  transportation  of  property,  in  excess  of  reasonable 
charges,  existed  at  common  law.  The  enactment  of  a  statute  impos- 
ing penalties  for  excessive  charges,  recoverable  by  the  party  injured, 
Dr  providing  that  for  exacting  and  collecting  them  the  agent  of  the 
railroad  company  shall  be  guilty  of  a  misdemeanor,  does  not  take 
away  the  right  existing  at  common  law  to  recover  money  paid  in 
excess  of  reasonable  charges.  See  City  of  Dubuque  v.  111.  Cen.  Ry. 
Co.,  39  Iowa  56;  City  of  Burlington  v.  B.  &  M.  Ry.  Co.,  41  Id,  134; 
Crittenden  v.  Wilson,  5  Cow.  165  ;  Gooch  v.  Stephenson,  13  Me. 
371  ;  Candee  v.  Howard,  37  N.  Y.  653. 

The  injured  party  may  waive  the  tort  created  by  statute,  and  sue 
upon  the  implied  contract  raised  by  law,  whereby  the  carrier  is 
obliged  to  repay  the  consignee  or  consignor  of  the  property  all 
sums  exacted  in  excess  of  reasonable  compensation.  Nor  need  the 
plaintiff,  in  a  case  brought  to  enforce  such  an  obligation,  show  ob- 
jection or  protest  prior  to  the  payment  made  in  excess  of  a  reasona- 
ble compensation.  These  rules  are  founded  upon  the  consideration 
that  railroad  companies  are  public  carriers,  and  those  who  employ 
them  are  in  their  power,  and  must  bow  to  the  rod  of  authority  which 
they  hold  over  consignors  and  consignees  of  property  transported 
by  them.  If  the  consignor  refuses  to  pay  or  contract  to  pay  the 
charges  fixed  by  the  railroad  company,  his  goods  will  not  be  car- 
ried ;  or,  if  the  consignee  refuses  to  make  the  payment  demanded, 
the  goods  will  not  be  delivered.  In  both  cases  great  loss  and  even 
destruction  of  profitable  business  will  result.  If  railroad  companies 
should  be  held  free  from  liability  for  excessive  charges,  the  whole 
business  of  the  country  would  be  subject  to  unjust  exactions,  result- 
ing in  oppression  to  citizens  and  destruction  to  useful  and  profitable 
business.  The  law  does  not  require  objection  or  protest  to  the  pay- 
ment of  unjust  charges,  for  the  reason  that  they  would  be  vain, 
being  addressed  to  those  who  occupy  the  commanding  position  of 


504  DURESS, 

power  to  enforce  obedience  to  their  requirements.  For  another 
reason  they  are  not  required :  Those  who  do  business  with  rail- 
roads never  come  in  contact  with  the  officers  who  possess  authority 
to  fix  or  abate  rates  of  charges;  indeed,  they  usually  hardly  know 
their  names  or  where  to  find  them.  Their  places  of  business  are 
usually  in  cities,  distant  from  points  where  much  of  the  property 
is  received  for  transportation.  If  the  consignee  should  be  required 
to  make  objection  or  protest  to  these  officers,  delays  would  follow, 
resulting  in  loss,  and,  in  the  case  of  the  shipment  of  some  kinds  of 
perishable  property,  in  its  decay.  These  considerations  take  the  case 
from  the  operation  of  the  familiar  rule  which  forbids  recovery  on 
account  of  payments  voluntarily  made  without  objection  or  protest. 
This  rule  does  not  apply  to  cases  of  compulsory  payments,  and  does 
not  require  objection  and  protest  when  they  would  be  unavailing 
and  vain.  The  doctrines  we  have  expressed  are  supported  by  the 
following  authorities :  Chicago  &  Alton  Ry.  Co.  v.  Coal  Co.,  79 
111.  121 ;  Mobile  &  M.  Ry.  Co.  v.  Steiner  et  al.,  61  Ala.  559 ;  Parker 
v.  Great  Western  Ry.  Co.,  7  Man.  &  Gr.  253 ;  Harmony  v.  Bing- 
ham, 12  N.  Y.  99;  Chandler  v.  Sanger  et  al.,  114  Mass.  364;  Ste- 
phan  v.  Daniels  et  al.,  t.'j  Ohio  527 ;  Robinson  v.  Ezzell,  72  N.  C. 
231;  Carew  v.  Rutherford  et  al.,  106  Mass.  i  ;  Lafayette  &  I.  Ry. 
Co.  V.  Pattison,  41  Ind.  312;  Philanthropic  Building  Ass.  v,  Mc- 
Knight,  35  Pa.  St.  470;  Wood  v.  Lake,  13  Wis.  84;  Wheaton  v. 
Hibbard,  20  Johns.  290;  Thomas  v.  Shoemaker,  6  Watts  &  S.  179; 
Palmer  v.  Lord,  6  Johns.  Ch.  95 ;  State  Bank  v.  Ensminger,  7 
Blackf.  105. 

IV.  The  action,  as  we  have  shown,  is  not  brought  to  recover 
the  penalty  provided  by  statute,  which  is  barred  by  the  statute  of 
limitations  in  two  years.  Herriman  v.  B.,  C.  R.  &  N.  Ry.  Co.,  57 
Iowa  187.  Being  an  action  to  recover  upon  an  implied  contract,  it 
is  not  barred  until  the  expiration  of  five  years. ^ 


MOBILE  AND  MONTGOMERY  RAILWAY  v.  STEINER, 
McGEHEE  &  CO. 

61  Ala.  559. — 1878. 

The  appellees,  Steiner,  McGehee  &  Co.,  brought  this  action  against 
the  appellant.  The  Mobile  and  Montgomery  Railway  Co.,  on  the 
14th  day  of  February,  1876,  to  recover  certain  penalties  which 
the  complaint  alleged  the  railway  company  had  incurred,  at  various 
times,  between  the  21st  day  of  April,  1875,  ^"^^  the  first  day  of  De- 
cember of  that  year,  by  violating  the  provisions  of  the  second  sec- 
tion of  "an  act  regulating  the  charges  for  transportation  of  freight 

'  Accord,  Cook  &  Whcclcr  v.  Chicago,  R.  I.  &  P.  Ry.,  81  Io\v;a  S5i  (1890). 


NON-PERFORMANCE   OF   PUBLIC   DUTY.  505 

upon  railroads  within  this  State,"  approved  April  19,  1873.  Some 
of  the  counts  also  sought  to  recover  the  amount  of  overcharges  ille- 
gally exacted  on  freights,  between  the  ist  day  of  December,  1875, 
and  the  4th  day  of  February,  1876, 

Stone,  J. — *  *  *  *  We  have  shown  above  that  any  demand 
and  payment  of  charges  for  transi)ortation  of  local  freight,  above 
fifty  per  cent,  increase  on  the  rate  of  the  same  description  of  freight 
over  the  whole  line  of  the  railway  is  excessive  and  illegal.  It  is  in 
positive  disregard  and  violation  of  the  mandate  of  the  law.  It  is  con- 
tended for  appellant,  first,  that  inasmuch  as  the  statute  has  declared 
the  rate  of  tolls,  and  has  given  a  penalty  for  its  violation,  this  rem- 
edy is  exclusive,  and  none  other  can  be  resorted  to.  Second,  that  the 
payments  were  voluntarily  made,  and  therefore  cannot  be  recovered 
back.  We  do  not  think  there  is  anything  in  either  of  these  objec- 
tions. In  regard  to  the  first,  any  violation  of  a  statute,  or  disregard 
of  a  statutory  duty,  by  which  another  suffers  pecuniary  loss,  gives 
to  the  injured  party  a  right  of  action  for  the  damages  sustained. 
Satterfield,  ExV,  of  Grey,  v.  Mobile  Trade  Co.,  55  Ala.  387.  And 
where  the  wrong  consists  in  the  unauthorized  demand  of  money, 
and  its  payment  under  such  unauthorized  demand,  this  is  money 
had  and  received  by  the  defendant  for  the  use  and  benefit  of  the 
payor,  unless  the  case  falls  within  the  principle  of  money  voluntarily 
paid ;  and  a  count  for  money  had  and  received  is  sufficient  for  its 
recovery. 

The  second  objection.  Railroads  have  so  expedited  and  cheapened 
travel  and  transportation  ;  have  so  driven  from  their  domain  all  com- 
peting modes  of  transportation,  that  the  public  is  left  no  discretion 
but  to  employ  them,  or  sufl^er  irreparable  injury  in  this  age  of  steam 
and  electricity.  They  have  their  established  rates  of  charges,  and 
these  the  shipper  must  pay,  or  forego  their  facilities  and  benefits. 
To  object  or  protest  would  be  an  idle  waste  of  words.  The  law  looks 
to  the  substance  of  things,  and  does  not  require  useless  forms  or 
ceremonies.  The  corporation  and  the  shipper  are  in  no  sense  on 
equal  terms,  and  money  thus  paid  to  obtain  a  necessary  service,  is 
not  voluntarily  paid,  as  the  law  interprets  that  phrase.  In  the  case 
of  the  Chicago  and  Alton  Railroad  Co.  v.  the  C,  V.  &  W.  Coal  Co., 
79  111.  121,  the  court,  in  reply  to  the  objection  that  the  money  was 
voluntarily  paid,  said :  'Tt  can  hardly  be  said  these  enhanced 
charges  were  voluntarily  paid  by  appellees.  It  was  a  case  of  life 
or  death  with  them,  as  they  had  no  other  means  of  conveying  their 
coals  to  the  markets  offered  by  the  Illinois  Central,  and  were  bound 
to  accede  to  any  terms  appellants  might  impose.  They  were  under 
a  sort  of  moral  duress,  by  submitting  to  which  appellants  have  re- 
ceived money  from  them  which  in  equity  and  good  conscience  they 
ought  not  to  retain."  The  case  of  Parker  v.  Gr.  Wes.  R.  R.  Co.,  7 
Man.  81  Gr.  253,  was  a  suit  by  a  shipper  to  recover  back  excessive 
charges  paid  the  railroad.  It  was  objected  that  the  payment  was 
voluntary.  The  court,  C.  J.  Tindal.  said :  "We  are  of  opinion  that 
the  payments  were  not  voluntary.    They  were  made  in  order  to  in- 


DURESS. 

duce  the  company  to  do  that  which  they  were  bound  to  do  without 
them ;  and  for  the  refusal  to  do  which  an  action  on  the  case  might 
have  been  maintained."  The  case  was  assumpsit  for  money  had  and 
received,  and  the  court  ruled  that  the  action  was  well  brought.  To 
the  same  effect  are  the  following  authorities,  2  Greenl.  Ev.,  §  121 ; 
Colwell  V.  Peden,  3  Watts  327 ;  Harmony  v.  Bingham,  2  Ker.  99 ; 
Bos.  &  S.  Glass  Co.  v.  City  of  Boston,  4  Mete.  181  ;  Chandler  v.  San- 
ger, 144  Mass.  364 ;  Stephen  v.  Daniels,  2^  Ohio  St.  527 ;  Tuttle  v. 
Everett,  51  Miss.  27;  Howe  v.  State,  53  Miss.  57;  Robinson  v.  Ez- 
zell,  ']2  N.  C.  231 ;  First  National  Bank  v.  Watkins,  21  Mich.  483; 
Atwell  V.  Zeluff,  26  Mich.  118;  McKee  v.  Campbell,  27  Mich.  497; 
Carew  v.  Rutherford,  106  Mass.  i ;  L.  &  I.  Railroad  Co.  v.  Pattison, 
47  Ind.  311. 

The  case  of  Potomac  Coal  Co.  v.  C.  &  P.  Railroad  Co.,  38  Md. 

226,  is  not  in  harmony  with  the  above,  but  we  decline  to  follow  it. 
*     *     *     *  ^ 

\    PINGREE  V.  MUTUAL  GAS  CO.  A 

i 

107  Mich.  156. — 1895. 

McGrath,  C.  J. — Plaintiff  paid  to  defendant  during  the  years 
1887  to  1892,  inclusive,  for  gas  consumed  upon  his  premises,  an 
aggregate  amount  of  $181.34  in  excess  of  the  rates  prescribed  by 
the  ordinance  under  which  the  company  operated.  The  payments 
were  made  upon  monthly  bills  rendered  on  the  first  of  each  month,  "H 

for  the  gas  consumed  during  the  previous  month.  The  testimony 
is  not  reported,  but,  instead,  are  concessions ;  and  it  is  conceded  that,  a  ,jx^  ^ 
at  the  time  of  the  payment  of  the  bills,  plaintiff  did  not  know  what.j'* 
the  average  charge  was  in  the  cities  named  in  the  ordinance.  Plain- 
tiff recovered.  Defendant  insists  (i)  that  the  ordinance  does  not 
confer  a  right  of  action  in  favor  of  a  private  consumer,  and  (2)  that 
the  payments  must  be  regarded  as  having  been  voluntary. 

The  ordinance  provides  that  "said  corporation  shall  in  no  instance, 
nor  under  any  circumstances  whatever,  charge  either  public  or  pri- 
vate consumers  higher  rates  for  the  supply  of  light  than  an  average 
of  the  rates  charged"  and  paid  by  such  consumers  in  five  cities,  nam- 
ing them.  This  provision  was  enacted  for  the  protection  and  bene- 
fit of  the  consumers.  It  limited  the  rate  which  defendant  could  law- 
fully charge,  and  a  charge  in  excess  thereof  was  illegal,  and  its  col- 
lection an  illegal  exaction.  The  right  to  recover  money  illegally 
exacted  does  not  depend  upon  the  statute.  Weet  v.  Trustees  of  Vil- 
lage of  Brockport,  16  N.  Y.  161,  note ;  City  of  Brooklyn  v.  Rail- 
road Co.,  47  N.  Y.  485 ;  Robinson  v.  Chamberlain,  34  N.  Y.  389 ; 
McMahon  v.  Railroad  Co.,  11  Hun  350;  McGregor  v.  Railway  Co., 
35  N.  J.  Law  89 ;  Grey's  Ex'r  v.  Mobile  Trade  Co.,  55  Ala.  387. 

As  to  the  second  point,  it  appears  that  the  bills  were  paid  in  ignor- 


NON-PERFORMANCE    OF    PUBLIC   DUTY.  507 

ance  of  the  fact  that  the  rates  charged  were  in  excess  of  the  average 
rate  in  the  cities  named  in  the  ordinance.  It  would  be  extremely 
technical  to  give  any  other  construction  to  the  concession  made  in 
the  record.  It  is  we'll  settled  that  a  voluntary  payment  cannot  be  re- 
covered back,  but  a  voluntary  payment  is  one  made  with  a  full  knowl- 
edge of  all  the  circumstances  upon  which  it  is  demanded,  and  with- 
out artifice,  fraud,  or  deception  on  the  part  of  the  payee,  or  duress 
of  the  person,  or  goods  of  the  person  making  the  payment.  It  is 
equally  true  that  money  paid  under  a  mistake  of  a  material  fact  may 
be  recovered.  Ignorance  of  the  existence  of  the  ordinance  is  not 
made  the  basis  of  the  recovery  here,  but  ignorance  of  the  fact  that 
the  rates  charged  and  paid  were  in  excess  of  those  in  the  cities 
named.  The  cases  relating  to  the  recovery  of  excessive  passenger 
or  freight  rates  are  analogous  in  principle  to  the  present  case.  The 
right  of  a  party  from  whom  has  been  exacted  payment  of  rates  of 
carriage  in  excess  of  those  fixed  by  charter  or  statute,  to  recover  the 
overcharge,  is  no  longer  open  to  serious  question,  i  Wood,  R.  R. 
p.  679,  §  206 ;  8  Am.  &  Eng.  Enc.  Law  934 ;  Parker  v.  Railway  Co. 
7  Man.  &  G.  253;  Railroad  Co.  v.  Lockwood,  17  Wall.  379;  Trans- 
portation Co.  V.  Sweetzer,  25  W.  Va.  434;  Peters  v.  Railroad  Co., 
42  Ohio  St.  275  ;  Railroad  Co.  v.  Steiner,  61  Ala.  559 ;  Heiserman 
V.  Railway  Co.,  63  Iowa  732,  18  N.  W.  903.  Arnold  v.  Railroad  Co., 
50  Ga.  304,  cited  by  defendant's  counsel,  holds  that  if  a  payment  be 
made  through  mere  ignorance  of  the  law,  or  paid  when  the  facts 
are  all  known,  and  there  is  no  misplaced  confidence  and  no  artifice 
or  deception,  an  action  will  not  lie  to  recover  it  back.  In  Potomac 
Coal  Co.  V.  Cumberland  &  P.  R.  Co.,  38  Md.  226,  the  action  was  for 
excess  of  freight  paid  by  plaintiff  from  July  i,  1864,  to  March  10, 
1871.  The  statute  prohibited  discrimination.  It  was  held  that  the 
money  had  been  paid  voluntarily,  under  no  mistake  of  fact,  and, 
there  being  no  circumstances  of  duress,  fraud,  or  extortion,  the  plaiti- 
tiff  was  not  entitled  to  recover.  In  Killmer  v.  Railroad  Co.,  100  N. 
Y.  395,  3  N.  E.  293,  there  was  no  statute  fixing  the  rate  or  render- 
ing the  charges  unlawful.  Held,  that  the  common-law  duty  imposed 
upon  common  carriers  to  carry  goods  upon  being  paid  a  reasonable 
compensation  does  not  preclude  special  contracts  between  railroad 
corporations  and  shippers  regulating  the  freight  charges  ;  and,  where 
freight  has  been^carried  for  a  long  course  of  years  at  the  schedule 
price,  the  shipper  making  no  objection  as  to  the  reasonableness  of 
the  charge,  he  must  be  deemed  to  have  assented  to  the  charge  as  rea- 
sonable, and  to  have  voluntarily  waived  any  objection  thereto:  at 
least,  the  receipt  of  the  freight  by  the  company  at  the  tariff  rate 
has  no  element  of  extortion,  and  an  action  is  not  maintainable  to  re- 
cover back  any  portion  thereof,  although  evidence  is  given  author- 
izing a  finding  that  the  charge  was  more  than  a  reasonable  sum  for 
the  transportation.  The  court  in  that  case  distinguished  it  from  the 
cases  arising  under  charter  clauses  or  statutes  prohibiting  discrimi- 
nation or  fixing  rates,  and  say :  "In  those  cases  there  was  a  viola- 
tion of  a  specific  statutory  duty,  and  in  all  of  them  the  payment  was 


508  DURESS. 

made  either  under  protest  or  in  ignorance  of  a  fact  which  could 
only  be  known  in  general  by  the  corporation,  and  which  was  con- 
cealed from  the  shipper.  What  is  a  reasonable  sum  for  transporta- 
tion of  goods  in  a  given  case  is  often  a  complex  question,  into  which 
enter  many  elements  and  considerations,  and  is  incapable  of  exact 
solution.  *  *  *  'pj^g  company  is,  doubtless,  better  informed 
than  the  shipper  as  to  what  would  be  a  compensatory  or  reasonable 
charge,  but  many  of  the  facts  which  enter  into  the  formation  of  a 
judgment  on  the  question  are  accessible  to  the  shipper." 

A  distinction  may  well  be  made  between  cases  depending  upon 
the  common-law  duty  to  carry  goods  at  a  reasonable  compensation, 
and  those  where,  by  the  statute,  the  rate  is  fixed  by  comparison,  or 
discrimination  is  prohibited.  In  the  latter  class  of  cases  the  facts 
are  pecuHarly  within  the  knowledge  of  the  company  fixing  the  rate, 
and  the  presumption  indulged  by  the  party  making  the  payment 
would  naturally  be  that  the  statute  was  being  complied  with.  The 
case  of  Advertiser  Co.  v.  Detroit,  43  Mich.  116,  5  N.  W.  72,  arose 
under  a  printing  contract,  and  was  put  upon  the  ground  that,  in  the 
absence  of  fraud,  a  municipal  body  which  is  given  the  power  to  al- 
low claims,  when  it  has  officially  passed  upon  a  claim,  must  be  con- 
clusively presumed  to  have  had  at  the  time  full  knowledge  of  all  the 
facts  pertaining  thereto,  which  a  proper  investigation  would  then 
have  disclosed.  No  such  presumption  applies  to  dealings  between 
individuals.  The  payment  in  the  present  case  was  made  in  ignor- 
ance of  a  material  fact.  Of  course,  no  objection  or  protest  was 
made.  An  objection  would  imply  knowledge  of  the  fact.  Payments 
made  by  reason  of  a  mistake  or  ignorance  of  a  material  fact  are  re- 
garded as  involuntarily  made.  Ignorance  of  a  fact  may  be  equiva- 
lent to  a  mistake  of  fact.  Hurd  v.  Hall,  12  Wis.  112.  In  Fuller  v. 
Railroad  Co.,  31  Iowa  187,  the  court  did  not  decide  the  question 
whether  a  person  could  recover  the  overcharge  if  he  knew  at  the 
time  of  payment  that  it  was  in  excess  of  the  rates  fixed,  but  held 
that,  if  he  was  ignorant  of  the  fact  at  the  time,  he  could  recover. 
See,  also,  Swift  Co.  v.  U.  S.,  iii  U.  S.  22,  4  Sup,  Ct.  244;  U.  S,  v. 
Barlow,  132  U.  S.  271,  10  Sup.  Ct.  yj  \  Moses  v.  Macferlan,  2  Bur- 
row 1005  ;  Beckwith  v.  Frisbie,  32  Vt.  559 ;  Devine  v.  Edwards, 
loi  111.  138;  Renard  v.  Fiedler,  3  Duer  318. 

But  it  is  urged  that  plaintiff  was  negligent  in  not  ascertaining  the 
fact.  But  mistake  of  fact  usually  arises  from  lack  of  investigation. 
The  fact  in  the  present  case  was  not  one  with  which  the  defendant 
had  nothing  to  do.  Its  duty  was  to  know  the  fact.  It  presented  the 
bills  containing  the  excessive  charges.  As  is  said  in  Walker  v. 
Conant,  65  Mich.  194,  31  N.  W.  786,  the  rule  is  general  that  money 
paid  under  a  mistake  of  material  facts  may  be  recovered  back,  al- 
though there  was  negligence  on  the  part  of  the  person  making  the 
payment.    The  judgment  is  affirmed. 

Grant,  J.,  did  not  sit.    The  other  justices  concurred. 


USURIOUS    INTEREST.  509 


iv.  Usurious  Interest. 


PHILANTHROPIC  BUILDING  ASSOCIATION  v.  MC- 
KNIGHT. 

35  Pa.  St.  470.— 1860. 

This  was  an  action  of  assumpsit  by  William  McKnight  against 
the  Philanthropic  Savings,  Loan  and  Building  Association,  to  re- 
cover back  a  sum  of  money  paid  to  the  defendants  on  an  usurious 
contract.  On  the  23d  of  June,  1854,  the  plaintiff,  who  was  the  holder 
of  five  shares  of  the  stock  in  the  Philanthropic  Savings,  Loan  and 
Building  Association,  was  the  successful  bidder  for  a  loan  of  $1,000 
at  a  premium  of  28  per  cent.  He  accordingly  received  from  the  de- 
fendants the  sum  of  $720,  executed  to  them  a  bond  and  mortgage  in 
the  sum  of  $1,800,  and  transferred  his  five  shares  of  stock  as  col- 
lateral security.  On  the  9th  of  August,  1858,  the  plaintiff  notified 
the  defendants  of  his  desire  to  pay  off  his  loan  and  discharge  the 
mortgage.  A  settlement  was  accordingly  had  between  the  parties, 
in  which  the  mortgage  was  estimated  at  $900,  and  the  defendants 
agreed  to  take  the  plaintiff's  stock  at  the  sum  he  had  paid  in  on  ac- 
count of  it ;  the  balance,  amounting  to  $574.07,  the  plaintiff  paid  in 
cash,  and  satisfaction  was  entered  on  his  mortgage.  This  suit  was 
subsequently  brought  to  recover  back  the  difference  between  the 
sum  of  $720  with  legal  interest,  and  the  amount  actually  paid  to  the 
defendants. 

Strong,  J. — That  the  payment  of  usurious  interest  is  not  a  volun- 
tary payment  in  any  such  sense  as  to  entitle  the  receiver  to  retain  the 
sum  paid  above  legal  interest  is  too  well  settled  to  admit  of  doubt. 
The  money  is  paid  under  the  constraint  of  a  formal  though  illegal 
contract.  That  contract  itself  was  obtained  by  oppression,  by  tak- 
ing advantage  of  the  necessities  of  the  borrower,  and,  of  consequence, 
so  was  the  usurious  interest  paid  under  it.  The  early  disposition 
of  the  English  courts  was  to  deny  the  right  of  a  party  paying  such 
interest  to  recover  back  any  portion  of  the  money  paid,  for  the  rea- 
sons that  both  parties  to  such  a  transaction  were  deemed  to  be  "in 
pari  delicto,"  and  the  excess  of  interest  was  regarded  as  paid  vol- 
untarily, so  that  the  maxim  "volenti  non  iit  injuria"  would  apply :  i 
Salk.  22.^  The  authority  of  this  decision,  however,  was  soon  ques- 
tioned. Lord  Mansfield  declared  that  the  case  had  been  denied 
a  thousand  times :  Cowper  199.  At  a  later  date  a  distinction  was 
taken  between  transactions  under  statutes  enacted  on  grounds  of 
general  policy,  where  each  party  violating  the  law  is  held  to  be  in 
equal  fault,  and  transactions  under  the  usury  laws,  enacted  to  pro- 
tect weak  and  needy  men  from  being  defrauded  and  oppressed.  To 
the  latter  the  law  does  afford  relief.    It  regards  the  lender  on  usury 

*  Accord,  Spalding  v.  Bank  of  Muskingum,  12  Oh.  544,  547  (1841). 


5IO  DURESS, 

as  an  oppressor,  and  the  borrower  as  the  injured  and  oppressed: 
Browning  v.  Morris,  Cowp.  790;  Briggs  v.  Thompson,  20  Johns, 
294;  Thomas  v.  Shoemaker,  6  Watts  &  Serg.  183.  And  in  none  of 
the  cases  do  we  discover  that  any  other  evidence  of  duress  or  op- 
pression has  been  held  to  be  necessary  than  such  as  is  involved  in 
the  act  itself  of  taking  the  money  under  an  usurious  contract.  The 
principle  of  the  statutes  of  usury  seems  to  be  that  the  lender  alone 
is  the  wrongdoer,  and  that  the  borrower  is  his  victim.^ 

In  this  case  the  jury  w-as  instructed  that  the  plaintiff  could  re- 
cover whatever  he  had  paid  to  the  defendants  (on  account  of  prin- 
cipal, instalments,  interest,  fines,  or  otherwise)  over  and  beyond  the 
sum  of  $720  originally  lent,  and  six  per  cent,  interest  thereon,  and 
this  even  though  the  plaintiff,  before  his  mortgage  became  due  and 
could  be  demanded,  proposed  to  the  defendants  to  pay  it  and  with- 
draw his  stock,  and  although  a  settlement  was  had  accordingly,  and 
the  mortgage  was  satisfied.  By  the  term  withdrawal  of  the  stock  it 
is  to  be  understood  not  that  stock  was  returned  to  the  plaintiff,  for 
none  ever  was,  but  that  he  should  cease  to  be  a  stockholder.  In 
effect,  the  transaction  was  an  extinguishment  of  the  stock.  The 
parties  agreed  to  treat  with  each  other  simply  as  debtor  and  creditor. 
Now,  how  is  it  possible  that  the  fact  that  the  settlement  was  made 
before  the  mortgage  became  due  and  payable  can  change  the  nature 
of  the  transaction  ?  It  still  remains  that  the  security  which  had  been 
exacted  was  for  a  greater  amount  than  the  sum  actually  lent.  The 
settlement  and  payment,  therefore,  were  under  the  constraint  of  an 
usurious  contract,  and  consequently,  the  "taking"  the  money  was 
itself  usurious,  whether  before  or  after  the  day  of  payment  fixed  in 
the  mortgage.  Nor  can  the  character  of  the  "taking"  be  changed 
by  the  fact  that  the  defendants  accepted  a  smaller  amount  of  usurious 
interest  than  they  would  have  received  had  they  exacted  all  that  the 
mortgage  called  for.  Then,  what  is  there  in  the  withdrawal  of  the 
stock,  in  other  words,  its  extinction,  more  than  an  application  of  the 
amount  paid  upon  it  toward  the  satisfaction  of  the  debt?  Certainly 
the  defendants  cannot  say,  after  having  taken  an  assignment  of  the 
stock  as  collateral  security  for  the  payment  of  the  plaintiff's  bond 
and  mortgage,  that  its  value  was  less  than  the  amount  of  money  paid 
to  them  upon  it.  When,  therefore,  he  relinquished  to  them  all  his 
legal  and  equitable  ownership,  when  he  gave  to  them  the  benefit  of 
all  the  payments  he  had  made  upon  it.  it  is  not  easy  to  see  wdiy  he 
is  not  to  be  credited  with  the  amount  of  those  payments  toward  the 
discharge  of  his  debt.  The  stock  may  have  been  worth  more  than 
that  amount.  It  could  not  have  been  worth  less.  The  charge  to  the 
jury  in  this  respect  was,  therefore,  unexceptionable,  and  it  was  in 
entire  harmony  with  what  was  said  in  Kupfert  v.  The  Guttenberg 
Building  Association,  and  Hughes's  Appeal,  6  Casey  465  and  471. 

'Accord,  State  Bank  v.  EiismiiiRcr,  7  Rlackf.  (Ind.)  105  (1844),  and  Brown 
V.  Mcintosh,  39  N.  J.  L.  22  (1876),  the  latter  case  containing  a  detailed  review 
of  the  English  cases. 


USURIOUS    INTEREST.  5 II 

We  think,  also,  the  court  was  right  in  refusing  to  charge  the  jury 
that  there  was  evidence  from  wliich  they  might  infer  that  the  ar- 
rangement made  and  consummated  between  the  parties  was  a  sale  of 
the  stock  to  the  defendants  for  the  balance  of  the  mortgage  loan, 
after  deducting  all  direct  payments  for  principal  and  interest.  We 
are  unable  to  find  any  evidence  wdiich  would  warrant  such  an  in- 
ference. A  withdrawal  of  the  shares,  not  a  sale,  was  the  thing  pro- 
posed and  assented  to.  Nothing  more  was  intended,  nothing  more 
was  done.  Judgment  affirmed.^ 


GROSS  V.  COFFEY. 

Ill  Ala.  468. — 1895. 

McClellan,  J. — *  *  *  *  The  question  of  chiefest  importance 
in  this  case  arises  on  the  rulings  of  the  trial  court  on  charges  request- 
ed, and  is  whether  usury  paid  can  be  recovered  back  in  an  action  of 
assumpsit ;  that  is,  in  the  absence  of  a  promise  to  repay  or  refund  it. 
At  common  law  such  recovery  w-as  allowed,  and  in  many  of  the  states 
the  action  is  sustained.  The  ruling,  however,  at  common  law  and  in 
those  states,  except  when  their  statutes  expressly  or  impliedly  au- 
thorize this  action,  goes  upon  the  theory  that  a  contract  to  pay  usury 
is  illegal  and  void,  and  not  voidable  merely ;  and  the  main  difference 
between  the  statutes  in  the  states  referred  to  and  our  own  lies  in  the 
fact  that  they  either  in  terms  declare,  or  have  been  construed  and 
held  to  declare,  such  contracts  absolutely  void,  while  the  statutes  of 
Alabama  do  not  so  declare,  but  only  provide  that  an  usurious  contract 
cannot,  when  the  objection  is  properly  taken  to  it,  be  enforced  in  re- 
spect of  the  usury  or  interest,  but  may  be  as  to  the  principal,  and 
have  uniformly  been  held  to  render  such  contracts  to  that  extent 
voidable  at  the  election  of  the  payor,  but  not  in  and  of  themselves  il- 
legal and  void.  The  common-law  doctrine,  and  the  doctrine  ad- 
ministered in  those  states  which  allow  such  recovery,  is  very  ably 
and  clearly  stated  by  the  supreme  court  of  New  Jersey  through  Reed, 
J.,  in  Brown  v.  Mcintosh,  39  N.  J.  Law  22.  The  contrary  view — 
that  which  denies  such  right  of  recovery — is  maintained  by  the  su- 
preme court  of  Massachusetts,  among  others,  and  is  expressly  put 
upon  the  ground  that  the  statutes  of  that  state  do  not  render  a  con- 
tract whereby  usurious  interest  is  allowed  illegal  and  void ;  and 
upon  this  consideration  the  court  differentiates  its  ow^n  conclusion 
from  the  contrary  one  reached  by  the  New  Hampshire  and  other 

*  Contra,  Dickerson  v.  Raleigh  Building  Asso.,  89  N.  C.  37,  39  (1883).  where 
the  court  says:  "The  courts  of  justice  will  not  aid  the  defendant  association, 
on  the  one  hand,  in  the  collection  of  its  unlawful  claims  upon  its  members ; 
nor  will  they,  on  the  other,  aid  its  corporators  in  their  efforts  to  recover 
moneys  they  may  have  paid  under  engagements  inoperative  in  law.  Ex  dolo 
malo  non  oritur  actio.  Mills  v.  B.  &  L.  A.,  75  N.  C.  292;  Latham  v.  B.  &  L. 
A.,  7y  N.  C.  145 ;  Commissioners  v.  Setzer,  70  N.  C.  426." 


512  DURESS. 

courts,  and  referred  to  in  argument,  saying :  "The  consideration 
that  now,  by  law,  the  contract  is  not  void,  distinguishes  this  case 
from  those  cited,  and  takes  away  the  ground  upon  which  they 
rested.  The  ground  upon  which  it  was  formerly  held  that  an  ac- 
tion for  money  had  and  received  would  lie  was  that  it  was  illegal 
and  oppressive  to  take  more  than  6  per  cent,  interest,  and  therefore 
it  could  not  conscientiously  be  retained  from  the  person  who  had 
paid  it.  This  was  the  ground  upon  which  the  case  of  Willie  v.  Green, 
2  N.  H.  333,  was  decided ;  for,  although  the  statute  of  New  Hamp- 
shire in  force  at  that  time  was  like  our  present  law,  in  providing  that 
three  times  the  interest  might  be  forfeited  and  deducted  when  such 
a  contract  was  in  suit,  and  gave  a  suit  to  recover  back,  not  the  whole, 
but  a  part,  of  the  usurious  interest,  yet,  unlike  ours,  it  expressly  pro- 
hibited the  taking  of  more  than  6  per  cent.,  and  thereby  made  it  il- 
legal. But  as,  by  our  statute,  the  contract  is  not  illegal,  the  party 
who  has  suffered  by  paying  usurious  interest  is  confined  to  the  stat- 
ute remedies."  Crosby  v.  Bennett,  7  Mete.  (Mass.)  17.  And  upon 
like  reasoning  the  same  conclusion  is  reached  in  a  number  of  other 
states  whose  statutes  do  not  declare  or  render  a  contract  involving 
usury  illegal  and  void,  but  only  provide  defenses  thereto  in  respect 
of  the  usury  and  interest,  or  forfeitures  and  the  like.  Van  Vleet 
v.  Sledge,  45  Fed.  743 ;  McBroom  v.  Investment  Co.,  153  U.  S.  318, 
14  Sup.  Ct.  852;  Graham  v.  Cooper,  17  Ohio  605;  Williamson  v. 
Cole,  26  Ohio  St.  207 ;  Ouinn  v.  Boynton,  40  Iowa  304 ;  Smith  v. 
Coopers,  9  Iowa  376 ;  Philips  v.  Gephart,  53  Iowa  396,  5  N.  W.  683 ; 
Bank  v.  Sherwood,  10  Wis.  230 ;  Ransom  v.  Hays,  39  Mo.  445  ;  Had- 
den  V.  Innes,  24  111.  381  ;  Tompkins  v.  Hill,  28  111.  519;  Lake  v. 
Brown,  116  111.  83,  4  N.  E.  773;  Bank  v.  Lutterloh,  81  N.  C.  142; 
Woolfolk  V.  Bird,  22  Minn.  341 ;  Cornell  v.  Smith,  27  Minn.  132, 
6  N.  W.  460;  Security  Co.  v.  Aughe,  12  Neb.  504,  11  N.  W.  753; 
Blain  v.  Willson  (Neb.),  49  N.  W.  224. 

Alabama  belongs  to  this  latter  category  of  states.  Usurious  con- 
tracts with  us  are  not  void.  In  any  event,  they  are  perfectly  valid 
and  binding  so  far  as  the  principal  is  concerned,  and  are  also  good, 
and  may  even  be  enforced  in  our  courts,  as  to  the  interest  and  usury, 
unless  the  payor  elects  to  interpose  the  defense  as  to  the  latter  items 
which  the  statute  furnishes  him.  Code,  §§  1750,  1754'.  Masterson 
V.  Grubbs,  70  Ala.  406;  Burns  v.  Campbell,  71  Ala.  271  ;  Bradford 
v.  Daniel,  65  Ala.  133.  And  it  is  not  claimed  that  the  legislature 
has  in  any  manner  authorized  an  action  for  the  recovery  of  usury 
paid.  So  that,  if  the  question  were  an  open  one  in  this  court,  we 
should  not  hesitate  to  declare  that  usury  voluntarily  paid,  as  it  was  in 
the  case  at  bar,  if  paid  at  all,  cannot  be  recovered  back  in  an  action 
of  assumpsit.  The  promise  to  pay  it  is  not  illegal  and  void,  but 
voidable  only,  at  the  election  of  the  promisor.  Not  availing  himself 
of  the  statutory  defense,  it  cannot  be  said  that  his  act  in  paying  or 
the  promisee's  act  in  receiving  the  usury  is  illegal.  But  the  ques- 
tion is  not  an  open  one  in  Alabama.  It  was,  in  substance,  decided, 
against  the  right  of  recovery  back,  in  the  celebrated  case  of  Jones  v. 


USURIOUS    INTEREST.  513 

Watkins,  i  Stew,  8i,  and  expressly  so  ruled  in  the  case  of  Noble 
V.  Moses  Bros.,  74  Ala.  604,  621  ;  and  subsequent  decisions  in  this 
latter  case  did  not  overrule  the  first  opinion  as  to  this  point.  The 
plaintiff  must  therefore  recover,  if  at  all,  on  the  alleged  promise  of 
the  defendant  to  repay  and  refund  whatever  of  usury  was  included 
in  the  payment  made  by  him  to  the  defendant,  and  the  recovery  must, 
of  course,  be  measured  by  the  terms  of  that  promise.     *     *     *     *i 


Spencer,  Ch.  J.,  in  WHEATON  v.  HIBBARD. 

20  Johns.  (N.  Y.)  290. — 1822. 

The  statute  to  prevent  usury  (i  N.  R,  L.  64),  after  regulating 
the  rate  of  interest,  authorizes  the  party  paying  usurious  interest  to 
sue  for  and  recover  the  excess  above  7  per  cent.,  within  one  year 
then  next,  with  costs  of  suit,  in  an  action  of  debt,  founded  on  the 
act ;  and  it  prescribes  a  succinct  form  of  declaring.  It  then  provides 
that  if  the  person  paying  usury  shall  not,  within  the  time  aforesaid, 
really  and  bona  fide  commence  his  suit  for  the  money  so  paid,  or  suf- 
fers it  to  be  delayed  or  discontinued,  then  it  shall  be  lawful  for  any 
other  person,  within  one  year  after  such  neglect,  to  sue  for  and  re- 
cover the  same,  in  manner  aforesaid,  one  moiety  whereof  is  given  to 
such  person,  and  the  other  moiety  to  the  use  of  the  poor  of  the  town 
in  which  the  ofifense  is  committed. 

This  provision  is  peculiar  to  our  statute.  By  the  12  Anne,  ch.  16, 
the  party  receiving  more  than  the  legal  rate  of  interest,  forfeited 
the  treble  value  of  the  moneys  or  other  things  lent.  It  is  contended 
that  the  person  who  pays  above  the  legal  rate  of  interest  is  con- 
fined to  the  statute  remedy,  and  that  he  must  not  only  sue  in  an  ac- 
tion of  debt,  but  that  the  suit  must  be  within  one  year,  or  he  is 
forever  precluded.  Now  the  principle  is,  that  where  a  party  has 
a  remedy  at  common  law  for  a  wrong,  and  a  statute  be  passed,  giv- 
ing a  further  remedy,  without  a  negative  of  the  common-law  remedy, 

^  The  Missouri  statute  provides  that  usurious  interest  cannot,  if  this  de- 
fense is  set  up,  be  recovered  from  the  debtor ;  but  "the  statute  does  not  con- 
template the  recovery  back  of  unlawful  interest  once  paid  on  a  usurious  con- 
tract."  See  Peters  v.  Lowenstein,  44  JNIo.  App.  406,  409  (1891). 

In  Massachusetts  the  statute  "provides  that  it  shall  be  lawful  'to  contract  for 
payment  and  receipt  of  any  rate  of  interest,  provided,  however,  that  no  greater 
rate  of  interest  than  six  per  centum  per  annum  shall  be  recovered  in  any  ac- 
tion, except  when  the  agreement  to  pay  such  greater  rate  of  interest  is  m 
writing.'  The  third  section  repeals  §§  3-5  of  the  Gen.  Sts.  c.  53.  Under  this 
statute,  so  long  as  an  oral  agreement  to  pay  a  greater  rate  of  interest  than  six 
per  cent,  remains  executory,  it  cannot  be  enforced.  But  it  is  lawful  for  parties 
to  pay  and  to  receive  a  greater  rate,  and  if  a  greater  rate  is  voluntarily  paid, 
the  excess  over  six  per  cent,  cannot  be  recovered  back." — Marvin  v.  Mandell, 
125  Mass.  562,  564  CT878). 

"Woodruff's  Cases — 33 


514  DURESS. 

expressed  or  implied,  he  may,  notwithstanding  the  statute,  have  his 
remedy  by  action  at  common  law.  i  Com.  Dig.  Action  on  Statute, 
C.  There  are  no  words  in  the  statute,  either  expressly  or  impliedly, 
negativing  the  common-law  remedy.  The  injured  party  cannot  have 
both  remedies,  and  if  he  neglect  to  pursue  the  statute  remedy  for 
more  than  a  year,  his  right  of  action  at  common  law  would  be  sus- 
pended during  the  second  year,  for,  peradventure,  a  third  person 
may  prosecute. 


National  Bank  Act. — In  Barnet  v.  National  Bank,  98  U.  S.  555 
(1878),  in  an  action  upon  a  bill  of  exchange,  defendant  sought  to 
apply  as  payment  upon  the  bill,  usurious  interest  paid.  The  court 
said  (p.  557)  :  "The  national  currency  act  of  Congress  of  June  3, 
1864  (13  Stat.  99,  §  30),  after  prescribing  the  rate  of  interest  to  be 
taken  by  the  banks  created  under  it  declares : 

'And  the  knowingly  taking,  receiving,  reserving,  or  charging  a 
rate  of  interest  greater  than  aforesaid  shall  be  held  and  adjudged  to 
be  a  forfeiture  of  the  entire  interest  which  the  note,  bill,  or  other 
evidence  of  debt  carries  with  it,  or  which  has  been  agreed  to  be 
paid  thereon ;  and  in  case  a  greater  rate  of  interest  has  been  paid, 
the  person  or  persons  paying  the  same,  or  their  legal  representatives, 
may  recover  back,  in  any  action  of  debt,  twice  the  amount  of  inter- 
est thus  paid,  from  the  association  taking  or  receiving  the  same ; 
provided,  that  such  action  is  commenced  within  two  years  from  the 
time  the  usurious  transaction  occurred.'  *  *  *  *  The  remedy 
given  by  the  statute  for  the  wrong  is  a  penal  suit.  To  that  the  party 
aggrieved  or  his  legal  representative  must  resort.  He  can  have  re- 
dress in  no  other  mode  or  form  of  procedure.  The  statute  which 
gives  the  right  prescribes  the  redress,  and  both  provisions  are  alike 
obligatory  upon  the  parties.  While  the  plaintifif  in  such  cases,  upon 
making  out  the  facts,  has  a  clear  right  to  recover,  the  defendant  has 
a  right  to  insist  that  the  prosecution  shall  be  by  suit  brought  specially 
and  exclusively  for  that  purpose, — where  the  sole  issue  is  the  guilt 
or  innocence  of  the  accused,  without  the  presence  of  any  extraneous 
facts  which  might  confuse  the  case,  and  mislead  the  jury  to  the 
prejudice  of  either  party." 


REAL  ESTATE  TRUST  CO.  v.  KEECH. 

69  N.  Y.  248.— 1877. 

This  action  was  brought  to  foreclose  a  mortgage  given  to  secure 
a  bond  for  $19,000.  The  defense  was  usury.  After  the  bond  be- 
came due,  it  was  agreed  between  plaintiff  and  defendant  that  in  con- 
sifleration  of  the  sum  of  $t,ooo  paid  by  defendant,  the  time  of  pay- 
ment should  be  extended  for  six  months.  The  sum  so  paid  was  to 
be  over  and  above  lawful  interest. 


DURESS   OF    PERSON. 


Jij 


Andrews,  J. — The  bond  and  mortgage  were  valid  in  their  incep- 
tion, and  the  usurious  agreement  for  the  extension  of  the  time  of 
payment  after  the  debt  became  due,  did  not  afifect  their  vahdity.  The 
agreement  for  forbearance  was  void,  but  the  original  debt  and  the 
securities  given  for  it  remained  in  full  force.  Ijlydenburg  on  Usury 
97 ;  Swartwout  v.  Payne,  19  J.  R.  294 ;  Merrills  v.  Law,  9  Cow.  65 ; 
Rice  v.  Welling,  5  Wend.  595 ;  Farmers'  and  Mechanics'  Bank  v. 
Joslyn,  37  N.  Y.  353. 

The  sum  paid  on  the  usurious  agreement  for  forbearance  will,  in 
equity,  be  applied  as  a  payment  on  the  original  debt,  and  the  de- 
fendant was  entitled  to  have  the  one  thousand  dollars  paid  by  him 
on  the  unlawful  agreement  credited  on  the  bond  and  mortgage. 
Crane  v.  Hubbel,  7  Paige  413 ;  Judd  v.  Seaver,  8  id.  548.     *     *     *i 


V.  Duress  of  Person. 

MORSE  V.  WOODWORTH. 
15s  Mass.  233.— 1892. 

Action  of  contract  to  recover  the  amount  of  three  promissory 
notes  given  by  defendant  to  plaintiff,  and  delivered  up  to  defend- 
ant by  plaintiff  and  mutual  releases  executed  under  threats  of  prose- 
cution and  arrest  on  a  criminal  charge  of  embezzling  defendant's 
money. 

The  court  charged  the  jury  in  substance  that  to  constitute  duress 
by  threats  of  imprisonment  the  threats  must  be  such  as  actually 
overcame  the  will  of  the  plaintiff,  and  that  in  testing  the  question 

^  In  Pixley  v.  Ingram,  53  Hun  93  (1889),  an  action  was  brought  at  law 
upon  a  promissory  note ;  the  defense  was  usury,  and  it  was  held  that  it  was 
not  competent  for  the  court  to  reduce  the  amount  of  the  plaintiff's  claim  to 
the  extent  of  the  usurious  payments  that  had  been  made,  inasmuch  as  they 
were  not  set  up  in  the  answer,  in  the  form  of  a  counterclaim. 

In  Davis  v.  Converse,  35  Vt.  503  (1863),  the  court  says  (p.  507)  :  ''It  now 
seems  to  be  settled  by  repeated  decisions,  that  where  usury  is  included  in  a 
note  or  other  security,  and  when  paid  is  endorsed  upon  the  note,  it  is  to  be 
considered  as  a  payment  upon  the  note  itself,  and  no  action  c«n  be  maintained 
to  recover  back  the  usury  paid,  so  long  as  there  remains  due  any  part  of  the 
principal  and  lawful  interest,  but  that  where  the  security  is  only  for  the  prin- 
cipal and  legal  interest,  and  the  unlawful  interest  is  either  put  into  a  separate 
obligation,  or  rests  in  a  verbal  agreement,  so  that  when  paid  it  is  not  en- 
dorsed upon  the  note,  but  is  paid  as  usury  eo  nomine,  it  is  otherwise,  and  a 
right  of  action  accrues  immediately  to  sue  and  recover  it  back,  though  the 
lawful  debt  is  still  unpaid.  Grow  v.  Albee.  19  Vt.  540;  Nelson  v.  Cooley,  20 
Vt.  201 ;  Day  v.  Cummings,  19  Vt.  496 ;  Nichols  v.  Bellows,  22  Vt.  581 ;  Ward 
V.  Whitney,  32  Vt.  89." 

In  Cummings  v.  Knight,  65  N.  H.  202  C1889),  the  payor  of  usurious  interest 
was  not  allowed  to  have  it  applied  upon  the  principal  after  his  right  to  recover 
such  interest  had  been  barred  bv  the  Statute  of  Limitations. 


5l6  DURESS. 

the  jury  might  consider  whether  they  were  such  as  would  overcome 
the  will  of  a  man  of  ordinary  firmness ;  and  refused  to  charge,  at  the 
request  of  defendant,  that  if  the  defendant  believed  plaintiff  had 
wrongfully  taken  money  belonging  to  defendant,  and  no  civil  or 
criminal  proceeding  had  been  begun,  then  mere  threats  of  prosecu- 
tion or  arrest  would  not  constitute  duress,  that  mere  threats  of 
criminal  prosecution  or  arrest,  when  no  warrant  has  been  issued  or 
proceedings  commenced,  do  not  constitute  duress.  The  court  re- 
ferred to  the  ambiguity  in  the  word  "mere,"  and  reiterated  its  former 
charge.    Defendant  excepted.    Verdict  for  plaintiff. 

Knowlton,  j,  *  *  *  *  The  only  remaining  exceptions  re- 
late to  the  requests  of  the  defendant  and  the  rulings  of  the  court  in 
regard  to  duress.  The  plaintiff  contended  that  he  gave  up  the  notes 
and  signed  the  release  under  duress  by  threats  of  imprisonment. 
The  question  of  law  involved  is  whether  one  who  believes  and  has 
reason  to  believe  that  another  has  committed  a  crime,  and  who,  by 
threats  of  prosecution  and  imprisonment  for  the  crime,  overcomes 
the  will  of  the  other,  and  induces  him  to  execute  a  contract  which 
he  would  not  have  made  voluntarily,  can  enforce  the  contract  if  the 
other  attempts  to  avoid  it  on  the  ground  of  duress. 

Duress  at  the  common  law  is  of  two  kinds,  duress  by  imprison- 
ment and  duress  by  threats.  Some  of  the  definitions  of  duress  per 
minas  are  not  broad  enough  to  include  constraint  by  threats  of  im- 
prisonment. But  it  is  well  settled  that  threats  of  imlawful  imprison- 
ment may  be  made  the  means  of  duress,  as  well  as  threats  of  griev- 
ous bodily  harm.  The  rule  as  to  duress  per  minas  has  now  a  broader 
application  than  formerly.  It  is  founded  on  the  principle  that  a  con- 
tract rests  on  the  free  and  voluntary  action  of  the  minds  of  the 
parties  meeting  in  an  agreement  which  is  to  be  binding  upon  them. 
If  an  influence  is  exerted  on  one  of  them  of  such  a  kind  as  to  over- 
come his  will  and  compel  a  formal  assent  to  an  undertaking  when 
he  does  not  really  agree  to  it,  and  so  to  make  that  appear  to  be  his 
act  which  is  not  his  but  another's,  imposed  on  him  through  fear, 
which  deprives  him  of  self-control,  there  is  no  contract  unless  the 
other  deals  with  him  in  good  faith,  in  ignorance  of  the  improper  in- 
fluence, and  in  the  belief  that  he  is  acting  voluntarily. 

To  set  aside  a  contract  for  duress  it  must  be  shown,  first,  that 
the  will  of  one  of  the  parties  was  overcome,  and  that  he  was  thus 
subjected  to  the  power  of  another,  and  that  the  means  used  to 
induce  him  to  act  were  of  such  a  kind  as  would  overcome  the 
mind  and  will  of  an  ordinary  person.  It  has  often  been  held  that 
threats  of  civil  suits  and  of  ordinary  proceedings  against  property 
are  not  enough,  because  ordinary  persons  do  not  cease  to  act  vol- 
untarily on  account  of  such  threats.  But  threats  of  imprisonment 
may  be  so  violent  and  forceful  as  to  have  that  effect.  It  must 
also  be  shown  that  the  other  party  to  the  contract  is  not,  through 
ignorance  of  the  duress  or  for  any  other  reason,  in  a  position 
which  entitles  him  to  take  advantage  of  a  contract  made  under 
constraint  without  voluntary  assent  to  it.     If  he  knows  that  means 


DURESS    OF    PERSON. 


517 


have  been  used  to  overcome  the  will  of  him  with  whom  he  is 
dealing,  so  that  he  is  to  obtain  a  formal  agreement  which  is  not 
a  real  agreement,  it  is  against  equity  and  good  conscience  for  him 
to  become  a  party  to  the  contract,  and  it  is  unlawful  for  him  to 
attempt  to  gain  a  benefit  from  such  an  influence  improperly  exerted. 

A  contract  obtained  by  duress  of  unlawful  imprisonment  is  void- 
able. And  if  the  imprisonment  is  under  legal  process  in  regular 
form,  it  is  nevertheless  unlawful  as  against  one  who  procured  it 
improperly  for  the  purpose  of  obtaining  the  execution  of  a  contract ; 
and  a  contract  obtained  by  means  of  it  is  voidable  for  duress.  So 
it  has  been  said  that  imprisonment  under  a  legal  process  issued 
for  a  just  cause  is  duress  that  will  avoid  a  contract  if  such  imprison- 
ment is  unlawfully  used  to  obtain  the  contract.  Richardson  v.  Dun- 
can, 3  N.  H.  508.  See  also  Foshay  v.  Ferguson,  5  Hill  (N.  Y.) 
154;  United  States  v.  Huckabee,  16  Wall.  414,  431  ;  Miller  v.  Miller, 
68  Penn.  St.  486;  Walbridge  v.  Arnold,  21  Conn.  424;  Wood  v. 
Graves,  144  Mass.  365,  and  cases  cited. 

It  has  sometimes  been  held  that  threats  of  imprisonment,  to  con- 
stitute duress,  must  be  of  unlawful  imprisonment.  But  the  ques- 
tion is,  whether  the  threat  is  of  imprisonment  which  will  be  unlaw- 
ful in  reference  to  the  conduct  of  the  threatener  wdio  is  seeking  to 
obtain  a  contract  by  his  threat.  Imprisonment  that  is  suffered 
through  the  execution  of  a  threat  which  was  made  for  the  purpose 
of  forcing  a  guilty  person  to  enter  into  a  contract  may  be  lawful 
as  against  the  authorities  and  the  public,  but  unlawful  as  against 
the  threatener,  when  considered  in  reference  to  his  effort  to  use  for 
his  private  benefit  processes  provided  for  the  protection  of  the  public. 
and  the  punishment  of  crime.  One  who  has  overcome  the  mind  and 
will  of  another  for  his  own  advantage,  under  such  circumstances, 
is  guilty  of  a  perversion  and  abuse  of  laws  which  were  made  for 
another  purpose,  and  he  is  in  no  position  to  claim  the  advantage 
of  a  formal  contract  obtained  in  that  way,  on  the  ground  that  the 
rights  of  the  parties  are  to  be  determined  by  their  language  and 
their  overt  acts,  without  reference  to  the  influences  which  moved 
them.  In  such  a  case,  there  is  no  reason  why  one  should  be  bound 
by  a  contract  obtained  by  force,  which  in  reality  is  not  his,  but 
another's. 

We  are  aware  that  there  are  cases  which  tend  to  support  the  con- 
tention of  the  defendant.  Harmon  v.  Harmon,  61  Maine  227 ;  Bo- 
dine  V.  Morgan,  10  Stew.  426,  428 ;  Landa  v.  Obert,  45  Texas  539 ; 
Knapp  V.  Hyde,  60  Barb.  80.  But  we  are  of  opinion  that  the  view 
of  the  subject  heretofore  taken  by  this  court,  which  we  have  fol- 
lowed in  this  opinion,  rests  on  sound  principles,  and  is  in  conformity 
with  most  of  the  recent  decisions  in  such  cases,  both  in  England 
and  America.  Hackett  v.  King,  6  Allen  58 ;  Taylor  v.  Jaques,  106 
Mass.  291;  Harris  v.  Carmody,  131  Mass.  51;  Bryant  v.  Peck  & 
Whipple  Co.,  154  Mass.  460;  Williams  v.  Bayley,  L.  R.  i  H.  L.  200; 
s.  c.  4  Giff.  638,  663,  note ;  Eadie  v.  Slimmon,  26  N.  Y.  9 ;  Adams 
v.  Irving  National  Bank,  116  N.  Y.  606;  Foley  v.  Greene,  14  R.  I. 


V 

5l8  DURESS. 

6i8;  Sharon  v.  Gager,  46  Conn.  189;  Bane  v.  Detrick,  52  111.  19; 
Fay  V.  Oatley,  6  Wis.  42. 

We  do  not  intimate  that  a  note  given  in  consideration  of  money 
embezzled  from  the  payee  can  be  avoided  on  the  ground  of  duress, 
merely  because  the  fear  of  arrest  and  imprisonment,  if  he  failed 
to  pay,  was  one  of  the  inducements  to  the  embezzler  to  make  the 
note.  But  if  the  fact  that  he  is  liable  to  arrest  and  imprisonment 
is  used  as  a  threat  to  overcome  his  will  and  compel  a  settlement 
which  he  would  not  have  made  voluntarily,  the  case  is  different. 
The  question  in  every  such  case  is,  whether  his  liability  to  imprison- 
ment was  used  against  him,  by  way  of  a  threat,  to  force  a  settle- 
ment. If  so,  the  use  was  improper  and  unlawful,  and  if  the  threats 
were  such  as  would  naturally  overcome  the  mind  and  will  of  an 
ordinary  man,  and  if  they  overcame  his,  he  may  avoid  the  settle- 
ment.    The  rulings  and  refusals  to  rule  were  correct. 

Exceptions  overruled. 


SILSBEE  V.  WEBBER. 

171  Mass.  378. — 1898. 

Present:  Field,  C.  J.,  Allen,  Holmes,  Knowlton,  Morton, 
Lathrop  and  Barker,  JJ. 

Holmes,  J. — This  is  an  action  to  recover  money  alleged  to  have 
been  got  from  the  plaintiff  by  duress.  In  the  court  below  a  verdict 
was  directed  for  the  defendant,  and  the  case  was  reported.  The 
plaintiff's  son  had  been  in  the  defendant's  employ,  had  been  accused 
by  him  of  stealing  the  defendant's  money,  had  signed  a  confession, 
whether  freely  or  under  duress  is  not  material,  and  had  agreed  to 
give  security  for  $1,500.  There  was  a  meeting  between  plaintiff 
and  defendant,  in  the  course  of  which,  as  the  plaintiff  testified,  the 
defendant  said  he  should  have  to  tell  the  young  man's  father,  the 
plaintiff's  husband.  At  that  time,  according  to  her,  her  husband 
had  trouble  in  his  head,  was  melancholy,  very  irritable,  and  unable 
to  sleep,  so  that  she  feared  that  if  he  were  told  the  knowledge 
would  make  him  insane.  The  plaintiff  further  testified  that  she 
previously  had  talked  with  the  defendant  about  her  husband's  con- 
dition, and  that  she  begged  him  not  to  tell  her  husband,  and  told 
him  that  he  knew  what  her  husband's  condition  was,  but  that  he 
twice  threatened  to  do  it  in  the  course  of  his  inquiries  as  to  what 
property  she  had,  and  that  to  prevent  his  doing  so  she  the  next  day 
went  by  agreement  to  the  office  of  the  defendant's  lawyer,  and 
executed  an  assignment  of  her  share  in  her  father's  estate.  Her 
son  was  present,  and,  as  he  says,  protested  that  this  was  extortion 
and  blood  money.  It  is  under  this  assignment  that  the  money  sued 
for  was  collected.  In  the  opinion  of  a  majority  of  the  court,  if  the 
evidence  above  stated  was  believed,  we  cannot  say  that  the  jury 


DURESS    OF    PERSON.  519 

would  not  have  been  warranted  in  finding  that  the  defendant  ob- 
tained, and  knew  that  he  was  obtaining,  the  assignment  from  the 
plaintiff  solely  by  inspiring  the  plaintiff  with  fear  of  what  he  threat- 
ened to  do ;  that  the  ground  for  her  fear  was,  and  was  known  to  be, 
her  expectation  of  serious  effects  upon  her  husband's  health  if  the 
defendant  did  as  he  threatened ;  and  that  the  fear  was  reasonable, 
and  a  sufficiently  powerful  motive  naturally  to  overcome  self-interest, 
and  therefore  the  plaintiff'  had  a  right  to  avoid  her  act.  Harris  v. 
Carmody,  131  Mass.  51,  53,  54;  Morse  v.  Woodworth,  155  Mass. 
233>  256. 

It  is  true  that  it  has  been  said  that  the  duress  must  be  such  as 
would  overcome  a  person  of  ordinary  courage.  We  need  not  con- 
sider whether,  if  the  plaintiff  reasonably  entertained  her  alleged 
belief,  the  well-grounded  apprehension  of  a  husband's  insanity  is 
something  which  a  wife  ought  to  endure  rather  than  part  with  any 
money,  since  we  are  of  opinion  that  the  dictum  referred  to,  if  taken 
literally,  is  an  attempt  to  apply  an  external  standard  of  conduct  in 
the  wrong  place.  If  a  party  obtains  a  contract  by  creating  a  motive 
from  which  the  other  party  ought  to  be  free,  and  which  in  fact  is, 
and  is  known  to  be,  sufficient  to  produce  the  result,  it  does  not 
matter  that  the  motive  would  not  have  prevailed  with  a  differently 
constituted  person,  whether  the  motive  be  a  fraudulently  created 
belief  or  an  unlawfully  created  fear.  Even  in  torts,  the  especial 
sphere  of  external  standards,  if  it  is  shown  that  in  fact  the  defend- 
ant by  reason  of  superior  insight  contemplated  a  result  which  a 
man  of  ordinary  prudence  would  not  have  foreseen,  he  is  answer- 
able for  it ;  and,  in  dealing  with  contributory  negligence,  the  per- 
sonal limitations  of  the  plaintiff,  as  a  child,  a  blind  man,  or  a  for- 
eigner unused  to  our  ways,  always  are  taken  into  account.  Late 
American  writers  repudiate  the  notion  of  a  general  external  measure 
for  duress,  and  we  agree  with  them.  Clark,  Contracts,  357 ;  Bishop, 
Contracts,  (ed.  1887)  §  719.  See  James  v.  Roberts,  18  Oh.  548,  562; 
Eadie  v.  Slimmon,  26  N.  Y.  9,  12. 

The  strongest  objection  to  holding  the  defendant's  alleged  action 
illegal  duress  is,  that  if  he  had  done  what  he  threatened,  it  would 
not  have  been  an  actionable  wrong.  In  general,  duress  going  to  mo- 
tives, consists  in  the  threat  of  illegal  acts.  Ordinarily,  what  you 
may  do  without  liability,  you  may  threaten  to  do  without  liability. 
See  Vegelahn  v.  Guntner,  167  Mass.  92,  107;  Allen  v.  Flood  [1898], 
A.  C.  I,  129,  165.  But  this  is  not  a  question  of  liability  for  threats 
as  a  cause  of  action,  and  we  may  leave  undecided  the  question 
whether,  apart  from  special  justification,  deliberately  and  with  fore- 
sight of  the  consequences  to  tell  a  man  what  you  believe  will  drive 
him  mad  is  actionable  if  it  has  the  expected  effect.  Spade  v.  Lynn 
&  Boston  Railroad,  168  Mass.  285,  290;  White  v.  Sander.  168  Mass. 
296.  If  it  should  be  held  not  to  be,  contrary  to  the  intimations  in 
the  cases  cited,  it  would  be  only  on  the  ground  that  a  different  rule 
was  unsafe  in  the  practical  administration  of  justice.  If  the  law 
were  an  ideally  perfect  instrument,  it  would  give  damages  for  such 


520  DURESS. 

a  case  as  readily  as  for  a  battery.  When  it  comes  to  the  collateral 
question  of  obtaining  a  contract  by  threats,  it  does  not  follow  that, 
because  you  cannot  be  made  to  answer  for  the  act,  you  may  use  the 
threat.  In  the  case  of  the  threat  there  are  no  difficulties  of  proof, 
and  the  relation  of  cause  and  effect  is  as  easily  shown  as  when 
the  threat  is  of  an  assault.  If  a  contract  is  extorted  by  brutal  and 
wicked  means,  and  a  means  which  owes  its  immunity,  if  it  have 
immunity,  solely  to  the  law's  distrust  of  its  own  powers  of  investi- 
gation, in  our  opinion  the  contract  may  be  avoided  by  the  party  to 
whom  the  undue  influence  has  been  applied.  Some  of  the  cases  go 
further,  and  allow  to  be  avoided  contracts  obtained  by  the  threat 
of  unquestionably  lawful  acts.  Morse  v.  Woodworth,  155  Mass. 
233,  251 ;  Adams  v.  Irving  National  Bank,  116  N.  Y.  606;  Williams 
v.  Bayley,  L.  R.  i  H.  L.  200,  210. 

In  the  case  at  bar  there  are  strong  grounds  for  arguing  that  the 
plaintiff  was  not  led  to  make  the  assignment  by  the  duress  alleged. 
They  are  to  be  found  in  the  fact  that  the  plaintiff  sought  the  de- 
fendant ;  in  her  testimony  that,  when  she  made  the  assignment,  she 
wanted  the  defendant  to  have  full  security  for  all  her  son  owed 
him ;  and  in  the  plaintiff's  later  conduct ; — but  we  are  considering 
whether  there  was  a  case  of  duress  for  the  jury. 

The  assignment  was  on  October  10,  1894.  Before  March  12, 
1895,  the  plaintiff  had  joined  with  her  sisters  in  employing  a  lawyer 
to  secure  her  share  in  her  father's  estate,  intending  it  to  be  paid 
over  to  the  defendant.  On  March  12,  1895,  to  the  same  end,  she 
signed  a  petition  for  distribution,  setting  forth  the  assignment,  and 
afterwards  took  some  further  steps  and  never  made  any  claim  that 
the  assignment  was  not  valid  until  December  19,  1895,  before  which 
time  it  had  come  to  the  knowledge  of  her  husband.  Apart  from 
the  weight  which  these  facts  may  give  to  the  argument  that  the 
plaintiff  did  not  act  under  duress,  they  found  an  independent  one, 
that  if  she  did  act  under  duress  she  has  ratified  her  act.  The  as- 
signment was  formally  valid.  The  only  objection  to  it,  if  any,  was 
the  motive  for  it.  Fairbanks  v.  Snow,  145  Mass.  153,  154.  There- 
fore it  might  be  ratified  by  the  plaintiff  when  she  was  free.  But 
the  acts  relied  on  were  done  in  connection  with  a  member  of  the 
bar,  who  had  been  the  defendant's  lawyer  before  he  undertook  to 
act  for  the  plaintiff,  and  who  plainly  appeared  to  be  acting  for  the 
plaintiff  only  in  the  defendant's  interest.  We  cannot  say  that  the 
jury  might  not  find  that  the  later  acts  of  the  plaintiff,  if  not  done 
under  the  active  influence  of  her  supposed  original  fear,  at  least 
were  done  before  the  plaintiff  had  gained  an  independent  foothold, 
or  realized  her  independence  of  her  rights.  We  are  of  opinion  that 
the  case  should  have  been  left  to  the  jury.  Adams  v.  Irving  Na- 
tional Bank,  it6  N.  Y.  606,  614,  615. 

Verdict  set  aside,  and  case  to  stand  for  trial. 

Knowlton,  J.  (dissenting). — *  *  *  *  j  ^an  see  nothing  in 
the  evidence  that  tends  to  show  that  the  defendant  was  guilty  of 
any  wrong  towards  the  plaintiff.     What  he  proposed  could  do  no 


DURESS    OF    PERSON.  52 1 

direct  harm  to  the  person  or  property  of  the  plaintiff  or  of  her  hus- 
band. At  most,  there  was  merely  a  possibility  or  a  probability  of 
suffering  and  harm  from  reflection  upon  facts  for  whose  existence 
the  defendant  was  not  responsible,  and  which  the  husband  would  be 
likely  to  learn  at  some  time  from  others  if  the  defendant  did  not 
tell  him.  But  this  probability,  viewed  from  the  defendant's  knowl- 
edge and  information,  was  no  greater  than  would  be  expected  in  the 
case  of  any  man  who  was  irritable,  melancholy,  and  unable  to  sleep 
from  trouble  in  his  head,  yet  whose  ailments  were  not  so  severe  as  to 
prevent  him  from  managing  a  somewhat  extensive  and  important 
business.  Reading  the  testimony  without  favor  or  prejudice,  I  do  not 
see  how  any  imputation  against  the  defendant  of  an  improper  purpose 
in  saying  to  the  })laintiff  that  he  should  have  to  tell  her  husband  can 
be  founded  on  anything  more  than  conjecture.  The  presumptions 
are  in  favor  of  honesty  and  fair  dealing,  and  the  testimony  is  to  be 
interpreted  accordingly. 

Moreover,  there  is  nothing  to  show  a  belief  on  the  part  of  the 
defendant  that  the  statement  that  he  should  tell  her  husband  would 
overcome  the  plaintiff's  will.  Upon  his  understanding  of  the  facts 
such  a  suggestion  would  not  be  expected  to  overcome  the  will  of 
any  person  of  ordinary  firmness,  and  there  is  no  evidence  that  she 
was  supposed  by  him  to  be,  or  that  she  was  in  fact,  less  firm  than 
other  women.  Whether  the  rule  so  often  stated  in  the  books,  that 
to  avoid  a  contract  on  the  ground  of  duress  by  threats,  a  threat  must 
be  such  as  would  overcome  the  will  of  a  person  of  ordinary  firmness, 
be  of  universal  application  or  not,  it  undoubtedly  furnishes  a  cor- 
rect guide  in  cases  in  which  there  is  nothing  to  show  that  the  party 
who  seeks  to  avoid  the  contract  was  not  of  ordinary  courage  and 
firmness. 

Upon  an  extended  examination  of  the  authorities,  I  have  found 
no  case  in  which  a  contract  has  been  set  aside  on  the  ground  of 
duress  on  such  evidence  as  appears  in  this  case.  I  think  the  ruling 
of  the  Superior  Court  was  correct. 

The  Chief  Justice  and  Mr.  Justice  Lathrop  concur  in  this  dissent. 


Marshall,  J.,  in  GALUSHA  v.  SHERMAN. 

105  Wis.  263,  2^2,  274,  280. — 1900. 

Anciently,  duress  in  law  by  putting  in  fear  could  exist  only 
where  there  was  such  a  threat  of  danger  to  the  object  of  it  as  was 
deemed  sufficient  to  deprive  a  constant  or  courageous  man  of  his 
free  will,  and  the  circumstances  requisite  to  that  condition  were 
distinctly  fixed  by  law ;  that  is  to  say,  the  resisting  power  which 
every  person  was  bound  to  exercise  for  his  own  protection  was 
measured,  not  by  the  standard  of  the  individual  affected,  but  by  the 


522  DURESS. 

standard  of  a  man  of  courage  ;  and  those  things  which  could  over- 
come a  person,  assuming  that  he  was  a  prudent  and  constant  man, 
were  not  left  to  be  determined  as  facts  in  a  particular  case,  but  were 
a  part  of  the  law  itself.  Co.  Litt.  253.  Said  Sir  William  Black- 
stone  (volume  I,  p.  130)  :  "Whatever  is  done  by  a  man  to  save 
either  life  or  member,  is  looked  upon  as  done  upon  the  highest 
necessity  and  compulsion.  Therefore,  if  a  man  through  fear  of  death 
or  mayhem  is  prevailed  upon  to  execute  a  deed  or  do  any  other  legal 
act,  these,  though  accompanied  by  all  the  other  requisite  solemnities, 
may  be  afterwards  avoided,  if  forced  upon  him  by  a  well-grounded 
apprehension  of  losing  his  life,  or  even  his  limbs,  in  case  of  his 
non-compliance."  "The  constraint  a  man  is  under  in  these  circum- 
stances is  called  in  law  duress."  "A  fear  of  battery  or  being  beaten, 
though  never  so  well  grounded,  is  no  duress,  neither  is  the  fear  of 
having  one's  house  burned,  or  one's  goods  taken  away  and  de- 
stroyed, because  in  these  cases,  should  the  threat  be  performed,  a 
man  may  have  satisfaction  by  recovering  equivalent  damages.  But 
no  suitable  atonement  can  be  made  for  the  loss  of  life  or  limb." 
Duress  of  imprisonment  existed,  by  the  old  rule,  only  where  there 
was  actual,  illegal  restraint  of  liberty.  The  doctrine  was,  "If  a  man 
be  imprisoned  by  order  of  law,  the  plaintiff  may  take  a  feoffment 
of  him,  or  a  bond  for  his  satisfaction,  and  for  the  deliverance  of 
the  defendant,  notwithstanding  that  imprisonment ;  for  this  is  not 
by  duress  of  imprisonment,  because  he  was  in  prison  by  course  of 
law,  for  it  is  not  accounted  in  law  duress  of  imprisonment,  but  where 
either  the  imprisonment,  or  the  duress  that  is  offered  in  prison,  or 
at  large,  is  tortious  and  unlawful."  2  Bac.  Abr.  771.  Thus  it  will 
be  seen  that,  in  the  early  days  of  the  common  law,  duress,  strictly 
so  called,  was  matter  of  law.  It  was  pleadable  as  a  defense  or  as 
material  to  a  cause  of  action,  by  alleging  the  existence  of  specific 
circumstances  legally  sufficient  to  constitute  duress,  and  was  estab- 
lished prima  facie  by  proving  the  truth  of  such  allegations.  The 
effect  of  the  facts  so  established  was  determinable  as  an  inference 
of  law,  not  of  fact.  Oppression  of  one  person  by  another,  causing 
such  person  to  surrender  something  of  value  or  some  advantage  to 
such  other,  not  amounting  to  duress  within  the  rigorous  rules  of 
law,  regardless  of  whether  the  oppression  actually  deprived  the 
oppressed  party  of  the  exercise  of  his  free  will,  was  remediless, 
except  by  an  appeal  to  a  court  of  equity,  where  a  remedy  was  obtain- 
able on  the  ground  of  unlawful  compulsion.  Id.  yy2.  *  *  *  * 
Early  in  the  development  of  the  law,  the  legal  standard  of  resist- 
ance that  a  person  was  bound  to  exercise  for  his  own  protection  was 
changed  from  that  of  a  constant  or  courageous  man  to  that  of  a 
person  of  ordinary  firmness.  That  will  be  found  by  reference  to 
some  of  the  earlier  editions  of  Chitty  on  Contracts.  See  i  Chitty, 
Cont.  (nth  ed.)  272;  2  Greenl.  Ev.  301.  But  the  ancient  theory 
that  duress  was  a  matter  of  law  to  be  determined  prima  facie  by  the 
existence  or  non-existence  of  some  circumstance  deemed  in  law 
sufficient  to  deprive  the  alleged  wronged  person  of  freedom  of  will 


DURESS    OF    PERSOX.  523 

power,  was  adhered  to  generally,  the  standard  of  resisting  power, 
however,  being  changed  so  that  circumstances  less  dangerous  to  per- 
sonal liberty  or  safety  than  actual  deprivation  of  liberty  or  imminent 
danger  of  loss  of  life  or  limb  came  to  be  considered  sufficient  in  law  to 
overcome  such  power.  The  oppressive  acts,  though,  were  still  re- 
ferred to  as  duress,  instead  of  the  actual  efifect  of  such  acts  upon  the 
will  power  of  the  alleged  wronged  person.  It  is  now  stated,  oftencr 
than  otherwise,  in  judicial  opinions,  that  in  determining  whether 
there  was  or  was  not  duress  in  a  given  case,  the  evidence  must  be 
considered,  having  regard  to  the  assumption  that  the  alleged  op- 
pressed person  was  a  person  of  ordinary  courage.     *     *     *     * 

The  true  doctrine  of  duress,  at  the  present  day,  both  in  thif^ 
country  and  in  England,  is  that  a  contract  obtained  by  so  oppressing 
a  person  by  threats  regarding  his  personal  safety  or  liberty,  or  that 
of  his  property,  or  of  a  member  of  his  family,  as  to  deprive  him  of 
the  free  exercise  of  his  will  and  prevent  the  meeting  of  minds 
necessary  to  a  valid  contract,  may  be  avoided  on  the  ground  of 
duress,  wdiether  the  oppression  causing  the  incompetence  to  contract 
be  produced  by  what  was  deemed  duress  formerly,  and  relievable  at 
law  as  such,  or  wrongful  compulsion  remediable  by  an  appeal  to 
a  court  of  equity.  The  law  no  longer  allows  a  person  to  enjoy, 
without  disturbance,  the  fruits  of  his  iniquity,  because  his  victim 
was  not  a  person  of  ordinary  courage,  and  no  longer  gauges  the  acts 
that  shall  be  held  legally  sufficient  to  produce  duress  by  any  arbitrary 
standard,  but  holds  him  who,  by  putting  another  in  fear,  shall  have 
produced  in  him  a  state  of  mental  incompetency  to  contract,  and 
then  takes  advantage  of  such  condition,  no  matter  by  what  means 
such  fear  be  caused,  liable  at  the  option  of  such  other  to  make  resti- 
tution to  him  of  everything  of  value  thereby  taken  from  him.^ 

^Accord,  Cribbs  v.  Sowle.  87  ]\Iich.  340  (1891).  But  see  Detroit  Nat.  Bank  v. 
Blodgett,  115  Mich.  160  (1897),  where,  upon  an  application  for  a  rehearing,  the 
court  says  (p.  169)  :  "Before  the  filing  of  the  opinion,  the  record  and  briefs 
were  carefully  examined  by  the  whole  court,  and,  from  such  examination,  we 
were  all  of  the  opinion  that  the  defense  sought  to  be  made  of  undue  influence 
by  the  elder  Blodgett  upon  his  two  sons,  Charles  and  Ralph,  was  not  sustained 
by  the  proofs.  As  it  was  there  said:  'Duress  or  undue  influence  must  be  such 
as  would  overcome  the  will  of  a  person  of  ordinary  firmness.'  No  such 
influence  was  shown  to  exist ;  on  the  contrary,  it  clearly  appeared  from  the 
testimony  of  Charles  that  he  executed  the  mortgage  to  keep  peace  in  the 
family,  and,  from  the  testimony  of  Ralph,  that  he  executed  it  under  the  di- 
rection and  advice  of  his  attorney.  We  can  but  reiterate  that  the  defendants 
wholly  failed  to  establish  any  such  claim  as  set  up." 


524  DURESS. 

HAYNES  V.  RUDD. 

83  N.  Y.  251.-1880. 

Appeal  from  judgment  of  General  Term  of  the  Supreme  Court, 
in  the  fourth  judicial  department,  entered  upon  an  order  made 
June  21,  1879,  affirming  a  judgment  in  favor  of  plaintiff,  entered 
upon  a  verdict.  (Reported  below,  17  Hun  477.)  The  testimony 
in  this  cause  was  to  the  following  effect :  The  plaintiff's  son  had 
been  in  the  employ  of  the  defendant  as  clerk,  and  it  was  claimed 
that  he  had  feloniously  taken  and  carried  away  money  from  his 
employer.  A  criminal  prosecution  was  threatened,  and  to  prevent 
it  plaintiff  gave  his  note  for  $250  to  his  wife,  who  endorsed  it  in 
such  a  manner  as  to  charge  her  separate  estate  therewith,  and  de- 
livered it  to  the  defendant,  who  transferred  it,  before  it  was  due, 
to  a  purchaser  in  good  faith,  to  whom  the  plaintiff  was  obliged  to 
pay  it.  This  action  was  brought  to  recover  back  the  moneys  paid. 
The  questions  presented  arose  upon  the  charge  of  the  court,  which  is 
stated  in  the  opinion. 

FoLGER,  Ch,  J. — The  judgment  in  this  case  should  be  reversed. 
The  trial  court  instructed  the  jury  that  if  they  found  that  the  note 
was  given  on  the  illegal  consideration  of  the  compounding  an  alleged 
crime,  it  was  void ;  that  it  had  no  legal  force  or  effect,  and  the 
plaintiff  was  entitled  to  recover  the  amount  of  the  note  with  interest. 
The  trial  court  refused  to  instruct  the  jury  that  if  there  was  no 
fraud,  duress  or  undue  influence  on  the  part  of  the  defendant,  and 
that  the  note  was  given  simply  to  compound  a  felony,  then  the 
plaintiff  was  not  entitled  to  recover.  We  think  this  was  error.  If 
there  was  simply  a  compounding  of  felony,  both  plaintiff  and  de- 
fendant, on  an  equality,  agreeing  that  the  plaintiff  should  give  his 
written  promise  to  the  defendant,  and  that,  therefore,  the  defendant 
should  give  his  oral  promise  to  conceal  the  felony,  and  abstain  from 
prosecuting  it,  and  withhold  the  evidence  of  it,  then  they  were  in 
pari  delicto,  and  the  law  will  leave  them  where  it  finds  them. 
(Fivaz  V.  Nicholls,  2  C.  B.  50T.)  To  give  the  plaintiff  any  claim 
to  recover,  he  must  show  that  he  was  in  such  plight  from  the  force 
or  threats  of  the  defendant  as  that  he  was  in  duress,  and  gave  the 
note  without  being  willing  to,  to  escape  from  the  predicament  in 
which  that  force  or  those  threats  put  him.  We  will  not  now  say, 
that  one  who  aids  in  doing  an  act  that  is  by  the  law  made  a  criminal 
offense,  may,  in  any  circumstances,  have  an  action  to  recover  any- 
thing paid  by  him  in  furtherance  thereof ;  but  we  do  say,  that 
if  he  does  it  voluntarily,  by  which  we  mean  without  force  or  threats 
compelling  his  will,  he  may  not  maintain  an  action.  The  instruction 
and  refusal  of  the  trial  court  amounted  to  just  the  reverse  of  this 
and  was  erroneous. 

The  learned  General  Term  seems  to  have  overlooked  the  request 
to  charge  and  refusal.  The  judgment  should  be  reversed  and  a  new 


DURESS    OF    PERSON.  525 

trial  had,  with  costs  to  abide  the  event.     All  concur.     Judgment 
reversed.^ 


PUCKETT  V.  ROQUEMORE. 

55  Ga.  235.— 1875. 

Bleckley,  Judge.- — i.  When  a  person  is  indicted  for  stealing 
money,  he  may  make  restitution.  If  he  be  guilty,  he  is  under  both 
a  civil  and  moral  obligation  to  do  so.  He  can  be  sued  for  it,  and 
compelled  to  refund.  If  he  be  innocent,  he  may,  nevertheless,  waive 
the  question  of  guilt  or  innocence,  and  make  voluntary  payment. 
Trial  and  acquittal  afterwards  will  not  entitle  him  to  recover  it  back ; 
if  he  meant  to  stand  upon  that  issue,  he  ought  to  have  done  so  at 
first,  and  refused  to  pay.  In  the  present  case  there  was  no  duress 
or  fraud ;  the  party  seems  not  to  have  been  in  custody,  but  free ; 
and  it  appears  that  the  proposition  to  settle  came  from  himself. 
Upon  the  supposition  that  he  paid  without  any  unlawful  agreement, 
there  is  no  ground  on  which  he  can  reclaim  the  money,  although  he 
has  since  been  acquitted  of  the  charge.     Perhaps  his  acquittal  may 

^  When,  after  a  new  trial,  the  case  came  again  to  the  Court  of  Appeals,  102 
N.  Y.  372  (1886),  the  court,  by  Miller,  J.,  stated  the  rule  as  follows  (p.  376)  : 
"While  fraud,  duress  and  undue  influence  emplo3'ed  in  procuring  a  contract 
for  the  payment  of  money  may  vitiate  and  destroy  the  obligation  created,  and 
render  it  of  no  effect,  and  the  party  who  has  been  compelled  to  pay  money  on 
account  thereof  may  maintain  an  action  to  recover  the  same,  such  a  right 
does  not  exist,  and  cannot  be  enforced  where  the  consideration  of  the  con- 
tract, thus  made,  arises  entirely  upon  or  is  in  any  way  affected  by  the  com- 
pounding of  a  felony.  When  this  element  enters  into  the  contract  it  becomes 
tainted  with  a  corrupt  consideration  and  cannot  be  enforced.  *  *  *  jf  ^hg 
consideration  of  the  note  was  in  any  way  affected  by  the  compounding  of  a 
felony,  or  it  entered  into  the  same,  or  such  a  motive  actuated  the  plaintiff  in 
any  respect,  then  the  contract  was  illegal  and  should  not  be  upheld.  In  such 
a  case  the  contract  was  vicious  and  corrupt,  and  in  violation  of  law  as  much 
as  if  compounding  a  felony  had  been  the  entire  consideration.  The  element  of 
illegality  constituted  a  part  of  the  contract,  thus  vitiating  the  whole,  and  it 
could  not  be  rejected  because  duress,  undue  influence  or  threats  were  also 
blended  with  it." 

In  Adams  v.  Irving  Nat.  Bank,  116  N.  Y.  606  (1889),  the  court  says  (p. 
614)  :  "If  the  money  was  paid  by  the  plaintiff,  through  fear,  produced  by  Mr. 
Castre's  representations,  that  if  the  claim  was  not  settled,  her  husband  would 
be  arrested  and  imprisoned,  the  payment  was  not  a  voluntary  one.  and  the 
defendant  obtained  no  title  to  the  money  received.  This  question  was  settled 
in  plaintiff's  favor  by  the  verdict  of  the  jury.  The  point  made  by  the  appel- 
lant that  the  transaction  was  a  compounding  of  a  felony  does  not  appear  to  be 
raised  by  any  appropriate  exception  in  the  case.  It  was  not  suggested  on 
the  trial,  either  in  the  motion  to  dismiss  or  in  the  request  to  charge.  There 
was  no  instruction  asked  or  given  to  the  jury  on  the  subject.  The  question 
is,  therefore,  not  before  this  court." 

"  The  facts  are  not  officially  reported  except  as  they  are  embraced  in  the 
opinion. — Ed. 


526  COMPULSION    OF    LAW. 

be  due  to  the  fact  that  he  extracted  from  the  prosecution  r.!l  its 
vigor,  by  soothing  the  prosecutor  with  this  repayment,  and  lulHng 
him  into  inaction. 

2.  If  the  money  was  paid  on  an  illegal  agreement  that  the  prose- 
cution should  be  settled  or  discontinued,  or  even  that  the  prosecutor 
should  use  his  influence  to  have  it  suppressed,  the  party  is  equally 
without  remedy.  In  contemplation  of  law  such  a  contract  is  vicious 
and  corrupt,  and  both  parties  are  at  fault,  in  pari  delicto.  The  law 
leaves  them  where  it  finds  them — in  the  bed  which  they  have  made 
for  themselves  they  must  lie. 

Judgment  affirmed. 


c.  Compulsion  of  Law. 
i.    Recovery  of  Money  Paid  After  Action  Begun. 

I.    BEFORE  JUDGMENT. 

MOORE  V.  VESTRY  OF  FULHAM. 

[1895]  I  Q-  B.  399  (Court  of  Appeal). 

On  September  19,  1893,  the  defendants  issued  a  summons,  under 
the  Metropolis  Management  Acts,  against  the  plaintiif,  returnable  at 
the  West  London  Police  Court  on  October  3,  to  enforce  payment  of 
a  sum  of  £35  13s.  9d.,  the  proportionate  part  of  the  expenses  of 
making  up  a  road  in  their  district  called  Silvio  Street,  found  due 
from  the  plaintifif  as  one  of  the  owners  of  the  land  abutting  on  the 
road.  On  October  2  the  plaintiff,  in  the  mistaken  belief  that  his 
property  abutted  upon  the  road,  sent  a  check  to  the  defendants  for 
the  amount.  On  the  summons  being  called  on  for  hearing  it  was, 
at  the  request  of  the  defendants,  adjourned  till  October  24,  and  the 
defendants  informed  the  plaintiff  of  this  fact.  On  October  19,  the 
plaintiff's  solicitor  wrote  to  the  defendants  demanding  a  return  of 
the  money,  on  the  ground  that  the  plaintiff's  property  did  not  abut 
upon  the  road,  and  that  the  plaintiff  was  consequently  not  liable, 
and  informing  them  that,  if  the  money  were  not  returned,  he  should 
attend  the  adjourned  hearing  of  the  summons.  The  defendants 
replied  that,  inasmuch  as  the  plaintiff  had  paid  the  money,  they 
would  be  pleased  to  withdraw  the  summons  without  the  plaintiff's 
attendance.  Neither  the  plaintiff  nor  his  solicitor  attended,  and,  by 
leave  of  the  magistrate,  the  summons  was  withdrawn.  On  Novem- 
ber 17  the  plaintiff's  solicitor  again  wrote  to  the  defendants  for  the 
return  of  the  money.  On  January  30,  1894,  the  plaintiff"  issued  the 
writ  in  this  action  for  £35  13s.  90!.,  for  money  had  and  received  by 
the  rlcfcndants  to  the  use  of  the  plaintiff,  and  for  money  paid  under 
a  mistake  of  fact. 


MONEY    PAID   BEFORE    JUDGMENT.  527 

The  learned  jiidg-e  held  that  the  plaintiff  was  precluded  from 
bringing  the  action  by  the  fact  that,  after  he  had  notice  of  the  mis- 
take, he  allowed  the  summons  to  be  withdravvn. 

The  plaintiff  appealed. 

Lord  Halsbury. — I  am  of  opinion  that  this  appeal  fails.  The  prin- 
ciple of  law  has  not  been  quite  accurately  stated  by  counsel  for  the 
appellant,  because  the  principle  of  law  is  not  that  money  paid  under 
a  judgment,  but  that  money  paid  under  pressure  of  legal  process 
cannot  be  recovered.  The  principle  is  based  ui)on  this,  that  when 
a  person  has  had  an  opportunity  of  defending  an  action  if  he 
chose,  but  has  thought  proper  to  pay  the  money  claimed  by  the 
action,  the  law  will  not  allow  him  to  try  in  a  second  action  what 
he  might  have  set  up  in  the  defense  to  the  original  action.  In 
Milnes  v.  Duncan,  6  B.  &  C.  671,  Holroyd^  J.,  states  quite  accurately 
v^rhat  I  think  is  the  principle.  He  says :  "If  the  money  had  been 
paid  after  proceedings  had  actually  commenced,  I  should  have  been 
of  opinion  that  inasmuch  as  there  was  no  fraud  in  the  defendant  it 
could  not  be  recovered  back."  And  in  Hamlet  v.  Richardson,  9 
Bing.  644,  Tindal,  C.  J.,  delivering  the  judgment  of  the  court  says: 
"We  think  that  the  rule  of  law  is  accurately  laid  down  by  Holroyd, 
J.,  and  that,  as  the  money  was  paid  in  this  case  after  the  suing  out 
(of)  process  to  recover  it,  the  defendants  in  the  former  action  know- 
ing the  cause  of  action  for  which  the  writ  was  sued  out  before  they 
paid  the  money,  and  there  being  no  fraud  on  the  part  of  the  plaintiff 
in  that  action,  it  appears  to  us  that  no  action  is  maintainable  to 
recover  it  back."  That  is  the  broad  principle,  and  it  is  manifest  that 
the  effort  to  confine  it  to  a  case  where  judgment  has  been  delivered 
is  inconsistent  with  what  is  laid  down  in  all  the  cases,  because  I  think 
in  every  one  of  them,  so  far  as  I  remember,  the  money  was  paid  be- 
fore the  process  had  arrived  at  judgment.  In  the  case  upon  which 
such  reliance  has  been  placed  [Caird  v.  Moss,  33  Ch.  D.  22,  36], 
my  brother  Lopes,  in  dealing  with  the  case  then  before  him,  not 
unnaturally  referred  to  the  fact  of  the  judgment  still  standing,  and 
for  this  reason,  because  the  money  in  that  case  was  paid  under  a 
judgment  founded  on  the  construction  of  an  agreement.  Then  an 
action  w-as  brought  to  rectify  that  agreement  on  the  ground  that 
such  a  construction  was  contrary  to  the  intention  of  all  the  parties. 
My  brother  Lopes,  without  going  into  the  merits  of  the  case,  practi- 
cally says  this :  "Why,  this  judgment  stands  now ;  you  cannot  re- 
open that  question.  You  had  full  opportunity  of  commencing  these 
proceedings  while  the  former  action  was  pending,  and  ought  to  have 
done  so,  and  we  cannot  now  interfere  with  that  judgment.  That 
judgment  still  stands."  It  is  quite  true  that,  read  without  connec- 
tion with  the  matter  that  was  then  being  decided,  that  looks  as  if  my 
brother  Lopes  was  putting  a  qualification  upon  the  general  rule  of 
law,  but,  when  the  facts  are  looked  at,  it  is  clear  that  he  was  doing 
nothing  of  the  sort.  He  was  referring  to  the  fact  that  the  money 
was  paid  in  that  particular  case  under  a  judgment,  and  that  the 
judgment  was  still  standing,  and  no  effort  had  been  made  to  upset 


y 

528  COMPULSION    OF    LAW. 

it.  Under  those  circumstances,  it  was  a  matter  of  course  that  the 
money  could  not  be  recovered  back.  I  am  opinion  that  the  judg- 
ment of  my  brother  Day  was  quite  right,  and  that  the  appeal  ought 
to  be  dismissed. 

LiNDLEY,  L.  J. — I  am  also  entirely  of  the  same  opinion.  I  think 
that  the  case  is  absolutely  covered,  not  by  one  authority,  but  by  a 
string  of  authorities,  of  which  Hamlet  v.  Richardson,  9  Bing.  644, 
is  as  good  a  type  as  any.  The  money  there  was  paid  after  a  writ 
to  recover  it  had  been  issued  and  served,  and  after  an  appearance 
had  been  entered.  But  what  does  that  mean  ?  It  means  this :  that 
the  defendant  says  in  substance  to  his  opponent,  "I  do  not  intend  to 
fight  you.  I  will  pay  rather  than  fight."  If  he  chooses  to  take 
that  course  he  cannot  back  out  of  it,  whether  he  discovers  that  he 
has  made  a  mistake  or  not.  That  is  the  ratio  decidendi  in  that  case 
and  in  several  others.  Of  course,  money  paid  under  a  judgment 
may  be  recovered  if  that  judgment  is  set  aside.  The  Court  of  Ap- 
peal in  setting  aside  a  final  judgment  always  orders  the  money  paid 
under  it  to  be  refunded.  That  is  what  my  brother  Lopes  had  in  his 
mind  in  Caird  v.  Moss,  33  Ch.  D.  22,  36.  Of  course  the  plaintiff 
cannot  recover  back  here. 

Appeal  dismissed.^       ^ 

[There  was  also  a  concurring  opinion  by  Smith,  L.  J.]  A 


A 


-i 


^  CHANDLER  v.  SANGER  and  another.       \ 

114  Mass.  364. — 1874. 

Contract  for  money  had  and  received.  At  the  trial  in  the  Su- 
perior Court,  before  Rockwell,  J.,  the  plaintiff,  in  opening  his 
case,  stated  that  he  expected  to  prove  that  the  plaintiff  was  a  dealer 
in  ice,  and  furnished  ice  each  week  day  to  parties  in  Boston,  under 
contracts  to  fvirnish  a  certain  amount  daily,  upon  all  week  days^ 
that  his  custom  was  to  have  his  carts  loaded  by  twelve  o'clock  on 
Sunday  night,  in  order  to  start  early  Monday  morning;  that  any 
failure  on  the  part  of  the  plaintiff  to  furnish  his  customers  with  ice 
on  Monday  would  be  a  great  injury  to  him ;  that  Monday  morning, 
July  12,  1869,  he  had  standing  in  his  sheds  at  Brighton,  adjoining 
his  icehouse,  five  heavy  two-horse  teams  loaded  with  ice,  ready  to 
start  for  Boston  before  light ;  that  the  defendant  Sanger  held  his 
promissory  note  and  had  proved  it  against  his  estate  in  insolvency ; 
that  in  the  insolvency  proceeding  he  had  obtained  his  discharge ; 
that  the  defendants  knew  these  facts ;  that  the  defendant  Sanger 
and  the  other  defendant,  who  was  an  attorney-at-law,  brought  an 

\Scc  Movvatt  V.  WriRht,  i  Wend.  (N.  Y.)  355  (1828),  for  a  general  discus- 
sion of  this  question  in  its  relation  to  other  cases  of  recovery  of  involuntary 
payments. 


MONEY    PAID   BEFORE   JUDGMENT.  529 

action  on  this  promissory  note,  under  circumstances  which  would 
satisfy  the  jury  that  the  action  was  commenced  and  carried  on  by 
them  fraudulently,  with  the  purpose  of  extorting  money  from  the 
plaintiff  by  duress,  under  color  of  legal  process ;  that  in  pursuance 
of  this  purpose,  they  went  about  two  o'clock  on  Monday  morning 
with  a  writ  in  the  hands  of  an  officer  and  made  an  attachment  of 
the  carts,  horses,  and  harnesses ;  that  the  attorney-at-law,  who  had 
been  with  the  officer  in  making  the  attachment,  went  to  the  plain- 
tiff's house  and  informed  him  of  the  attachment,  and  told  him  that 
none  of  the  property  so  attached  could  go  to  Boston  unless  the  claim 
should  first  be  settled  by  the  payment  of  $300 ;  that  the  plaintiff  told 
the  attorney  that  he  did  not  owe  anything,  and  said  he  would  dissolve 
the  attachment  by  giving  a  bond ;  that  the  attorney  then  told  him 
that  it  would  take  three  days  to  dissolve  it,  and  that  for  that  time 
the  property  would  be  held  under  it,  and  that  his  discharge  in  insolv-. 
ency  did  not  cut  off  the  claim ;  that  the  plaintiff  believed  thesv 
statements,  and  being  ignorant  of  the  method  of  dissolving  attacli-. 
ments  and  being  in  fear  of  great  loss  in  his  business,  to  relieve  tLu 
property  from  attachment  he  paid  the  $300  to  the  attorney  under 
protest,  stating  that  he  should  claim  and  enforce  his  rights,  and  re- 
cover back  the  money. 

The  presiding  judge  being  of  the  opinion  that  these  facts,  if 
proved,  would  not  sustain  the  action,  so  ruled ;  whereupon,  by  con- 
sent of  the  parties,  he  reported  the  case  to  this  court  for  their  de- 
cision. It  was  agreed  that  if  the  court  should  be  of  opinion  that 
these  facts,  if  proved,  were  sufficient  to  sustain  the  action,  then  it 
was  to  stand  for  trial;  otherwise  judgment  was  to  be  entered  for 
the  defendants. 

Gray,  J. — This  is  not  an  action  of  tort,  to  recover  damages  for 
malicious  prosecution,  or  abuse  of  legal  process,  but  an  action  of 
contract,  in  the  nature  of  assumpsit,  for  money  had  and  received 
by  the  defendants,  which  they  have  no  legal  or  equitable  right  to 
retain  as  against  the  plaintiff'.  Although  the  process  sued  out  for 
the  defendant  was  in  due  form,  yet  if,  as  was  offered  to  be  proved 
at  the  trial,  he  fraudulently,  and  knowing  that  he  had  no  just  claim 
against  the  plaintiff,  arrested  his  body  or  seized  his  goods  thereon, 
for  the  purpose  of  extorting  money  from  him,  then,  according  lO 
all  the  authorities,  the  payment  of  money  by  the  plaintiff,  in  order 
to  release  himself  or  his  goods  from  such  fraudulent  and  wrongful 
detention,  was  not  voluntary,  but  by  compulsion ;  and  the  money 
so  paid  may  be  recovered  back,  without  proof  of  such  a  termination 
of  the  former  suit  as  would  be  necessary  to  maintain  an  action  for 
malicious  prosecution.  Watkins  v.  Baird,  6  Mass.  506 ;  Shaw,  C.  J., 
in  Preston  v.  Boston,  12  Pick.  7,  14;  Benson  v.  Monroe,  7  Cush.  125, 
131;  Carew  v.  Rutherford,  io6  Mass.  i,  ii,  et  seq. ;  Richardson  v. 
Duncan,  3  N.  H.  508;  Sartwell  v.  Horton,  28  Vt.  370;  Gibson,  C. 
J.,  in  Colwell  v.  Peden,  3  Watts  327,  328;  Cadaval  v.  Collins,  4  A. 

"Woodruff's  Cases — 34 


7 

530  COMPULSION    OF    LAW. 

&  E.  858;  Parke,  B.,  in  Oates  v.  Hudson,  6  Ex.  346,  348,  and  in 
Parker  v.  Bristol  and  Exeter  Railway  Co.,  6  Ex.  702,  705.  / 

New  trial  ordered.  / 


V: 


-,  TURNER  V.  BARBER.  ^J 

i6  N.  J.  L.  496. — 1901. 


Garrison,  J. — This  is  an  action  brought  in  the  Salem  pleas  upon 
an  appeal  to  recover  money  paid  by  Turner  to  Barber's  proctor  in 
admiralty.  The  ground  of  the  plaintiff's  action  v/as  that  the  money 
so  paid  had  been  obtained  from  him  by  duress  of  his  goods.  The 
duress  referred  to  was  the  seizure  and  detention  of  a  scow  belonging 
to  Turner  by  the  deputy  United  States  marshal  under  a  monition  of 
libel  issued  in  a  suit  in  admiralty  brought  by  Barber  against  the 
scow  for  wharfage.  To  effect  the  release  of  the  scow,  Turner, 
without  contesting  the  claim,  paid  it  under  protest  to  the  proctor  of 
the  libelant,  and  then  sued  Barber  on  it  in  the  court  for  the  trial  of 
small  causes,  and  recovered  a  judgment  against  him.  Upon  an 
appeal  by  Barber  to  the  common  pleas,  a  similar  judgment  was  re- 
covered by  Turner.  Thereupon  Barber  removed  the  judgment  of 
the  pleas  to  this  court  by  a  writ  of  certiorari.  The  facts  found  by 
the  court  of  common  pleas  appear  in  the  return  made  by  the  judge 
of  that  court  in  response  to  a  rule. 

The  judgment  of  the  common  pleas  must  be  reversed.  The  plain- 
tiff did  not  make  out  a  case  of  extortion.  The  payment  by  the  plain- 
tiff of  the  claim  for  wharfage  with  full  knowledge  of  the  facts  was 
a  voluntary  one,  even  if  he  did  not  owe  it. 

The  proposition  maintained  by  the  case  annotated  upon  this  sub- 
ject in  Smith's  Leading  Cases  is  that  money  paid  under  regular  legal 
process  in  a  judicial  proceeding,  without  contest,  and  with  a  full 
knowledge  of  the  facts,  is,  in  the  absence  of  fraud,  not  recoverable. 
2  Smith,  Lead.  Cas.  (8th  Am.  Ed.)  436. 

There  is  nothing  in  the  facts  of  the  present  case  to  take  it  out 
of  this  rule,  or  to  invoke  the  rule  with  respect  to  the  duress  of  goods. 
The  court  decided  that  the  plaintiff  did  not  owe  the  wharfage,  but 
did  [not]  find  fraud  in  the  libelant,  or  that  he  knew  or  ought  to 
have  known  that  the  scow  was  not  liable  for  the  wharfage,  or  even 
that  he  knew  of  the  pending  sale  of  the  scow,  and  timed  his  process 
as  a  means  of  extortion.  The  essential  factors  of  a  duress  of  goods 
by  the  use  of  process  were  lacking.  The  libelant  had  not  received 
pay  for  the  scow's  use  of  the  wharf,  and  had  a  legal  right  to  test  its 
liability  in  a  competent  tribunal  of  his  own  selection.  Moreover,  a 
complete  answer  to  the  claim  of  duress  is  contained  in  the  finding 
of  the  trial  court  that  the  "plaintiff  was  of  ample  pecuniary  ability 
to  give  sufficient  bond  to  enable  him  to  procure  the  release  of  the 
said  boat  from  the  custody  of  the  said  United   States  marshal." 


MONEY    PAID    AFTER    JUDGMENT.  '53I 

This  fact  destroys  the  force  of  the  plaintiff's  contention  that  the 
immediate  dehvery  by  him  of  his  boat  to  complete  a  contract  of  sale 
compelled  him  to  pay  the  claim  against  it.  Under  the  circumstances 
his  payment  of  the  claim  was  a  matter  of  convenience  merely.  The 
course  pursued  by  the  plaintiff  enabled  him  to  release  his  boat  with- 
out litigating-  the  validity  of  the  claim  against  it  in  a  tribunal  where 
the  libelant  had  acquired  a  right  to  have  the  matter  decided.  To 
permit  the  matter  to  be  afterwards  litigated  in  a  forum  of  the  plain- 
tiff's choosing  is  contrary  to  sound  policy.  His  payment  of  the  ad- 
miralty claim  must  be  deemed  to  have  been  made  voluntarily,  and 
without  fraud  or  force. 

The  judgment  of  the  pleas  must  be  reversed  and  set  aside,  and  a 
judgment  of  non-suit  entered. 


2.     AFTER   JUDGMENT. 

MOSES  V.  MACFERLAN. 
2  Burr.  (K.  B.)  1005. — 1760. 

Lord  Mansfield  delivered  the  resolution  of  the  court  in  this 
case,  which  stood  for  their  opinion:  "Whether  the  plaintiff  could 
recover  against  the  defendant  in  the  present  form  of  action  (an 
action  upon  the  case  for  money  had  and  received  to  the  plaintiff';-* 
use),  or  whether  he  should  be  obliged  to  bring  a  special  action  upon 
the  contract  and  agreement  between  them." 

It  was  an  action  upon  the  case,  brought  in  this  court  by  the  now 
plaintiff,  Moses,  against  the  now  defendant,  Macferlan  (heretofore 
plaintiff  in  the  Court  of  Conscience,  against  the  same  Moses  now 
plaintiff  here),  for  money  had  and  received  to  the  use  of  Moses, 
the  now  plaintiff  in  this  court. 

The  case,  as  it  came  out  upon  evidence  and  without  dispute  at 
nisi  prius  before  Lord  Mansfield  at  Guildhall,  was  as  follows : — 

It  was  clearly  proved,  that  the  now  plaintiff,  Moses,  had  indorsed 
to  the  now  defendant,  Macferlan,  four  several  promissory  notes 
made  to  Moses  himself  by  one  Chapman  Jacob,  for  30s.  each,  for 
value  received,  bearing  date  7th  November,  1758;  and  that  this  was 
done  in  order  to  enable  the  now  defendant,  Macferlan,  to  recover 
the  money  in  his  own  name,  against  Chapman  Jacob.  But  previous 
to  the  now  plaintiff's  indorsing  these  notes,  Macferlan  assured  him 
"that  such  his  indorsement  should  be  of  no  prejudice  to  him;"  and 
there  was  an  agreement  signed  by  Macferlan,  whereby  he  (amongst 
other  things)  expressly  agreed  "that  Moses  should  not  be  liable  to 
the  payment  of  the  money,  or  any  part  of  it ;  and  that  he  should  not 
be  prejudiced,  or  be  put  to  any  costs,  or  any  way  suffer,  by  reason 
of  such  his  indorsement."  Notwithstanding  which  express  condi- 
tion and  agreement,  and  contrary  thereto,  the  present  defendant, 


532  COMPULSION    OF    LAW. 

Macferlan,  summoned  the  present  plaintiff,  Moses,  into  the  Court 
of  Conscience,  upon  each  of  these  four  notes,  as  the  indorser  thereof 
respectively,  by  four  separate  summonses.  Whereupon  Moses  (by 
one  Smith,  who  attended  the  Court  of  Conscience  at  their  second 
court,  as  solicitor  for  him  and  on  his  behalf)  tendered  the  said  in- 
demnity to  the  Court  of  Conscience,  upon  the  first  of  the  said  four 
causes ;  and  offered  to  give  evidence  of  it  and  of  the  said  agreement, 
by  way  of  defense  for  Moses  in  that  court.  But  the  Court  of  Con- 
science rejected  this  defense,  and  refused  to  receive  any  evidence  m 
proof  of  this  agreement  of  indemnity,  thinking  that  they  had  no 
power  to  judge  of  it ;  and  gave  judgment  against  Moses,  upon  the 
mere  foot  of  his  indorsement  (which  he  himself  did  not  at  all  dis- 
pute), without  hearing  his  witnesses  about  the  agreement  "that  he 
should  not  be  liable  ;"  for  the  commissioners  held  this  agreement  to  be 
no  sufficient  bar  to  the  suit  in  their  court ;  and  consequently  decreed 
for  the  plaintiff  in  that  court,  upon  the  undisputed  indorsement 
made  by  Moses.  This  decree  was  actually  pronounced  in  only  one 
of  the  four  causes  there  depending;  but  Moses's  agent  (finding  the 
opinion  of  the  commissioners  to  be  as  above  mentioned)  paid  the 
money  into  that  court  upon  all  the  four  notes ;  and  it  was  taken  out 
of  court  by  the  now  defendant,  Macferlan  (the  then  plaintiff  in  that 
court),  by  order  of  the  commissioners. 

All  this  matter  appearing  upon  evidence  before  Lord  Mansfield 
at  nisi  priiis  at  Guildhall,  there  was  no  doubt  but  that,  upon  the 
merits,  the  plaintiff  was  entitled  to  the  money ;  and  accordingly  a 
verdict  was  there  found  for  Moses,  the  plaintiff  in  this  court,  for 
61.  (the  whole  sum  paid  into  the  Court  of  Conscience),  but  subject 
to  the  opinion  of  the  court  upon  this  question,  "Whether  the  money 
could  be  recovered  in  the  present  form  of  action,  or  whether  it 
must  be  recovered  by  an  action  brought  upon  the  special  agreement 
only." 

The  court  having  heard  the  counsel  on  both  sides,  took  time  to 
advise. 

Lord  Mansfield  now  delivered  their  unanimous  opinion,  in  favor 
of  the  present  action. 

There  was  no  doubt  at  the  trial,  but  that  upon  the  merits  the  plain- 
tiff was  entitled  to  the  money  ;  and  the  jury  accordingly  found  a 
verdict  for  the  6/.,  subject  to  the  opinion  of  the  court  upon  this 
question,  "Whether  the  money  might  be  recovered  by  this  form  of 
action,"  or  "must  be  by  an  action  upon  the  special  agreement  only." 

Many  other  objections,  besides  that  which  arose  at  the  trial,  have 
since  been  made  to  the  propriety  of  this  action  in  the  present  case. 

The  1st  objection  is,  "That  an  action  of  debt  would  not  lie  here; 
and  no  assumpsit  will  lie  where  an  action  of  debt  may  not  be 
brought ;"  some  sayings  at  nisi  priiis,  reported  by  note-takers  who  did 
not  understand  the  force  of  what  was  said,  are  quoted  in  support  of 
that  proposition.     But  there  is  no  foundation  for  it. 

It  is  much  more  plausible  to  say,  "That  where  debt  lies  an  action 
upon  the  case  ought  not  to  be  brought."     And  that  was  the  point 


MONEY   PAID    AFTER   JUDGMENT.  533 

relied  upon  in  Slade's  case,  4  Co.  92;  but  the  rule  then  settled  and 
followed  ever  since  is,  "That  an  action  of  assumpsit  will  lie  in  many 
cases  where  debt  lies,  and  in  many  where  it  does  not  lie." 

A  main  inducement,  originally,  for  encouraging  actions  of  as- 
sumpsit was,  "to  take  away  the  wager  of  law ;"  and  that  might  give 
rise  to  loose  expressions,  as  if  the  action  was  confined  to  cases  only 
where  that  reason  held. 

2d  Objection.  "That  no  assumpsit  lies  except  upon  an  express  or 
implied  contract ;  but  here  it  is  impossible  to  presume  any  contract 
to  refund  money  which  the  defendant  recovered  by  an  adverse  suit." 

Answer.  If  the  defendant  be  under  an  obligation,  from  the  ties 
of  natural  justice,  to  refund,  the  law  implies  a  debt,  and  gives  this 
action,  founded  in  the  equity  of  the  plaintiff's  case,  as  it  were  upon 
a  contract  ("quasi  ex  contractu,")  as  the  Roman  law  expresses  it. 

This  species  of  assumpsit  ("for  money  had  and  received  to  the 
plaintiff's  use")  lies  in  numberless  instances  for  money  the  defend- 
ant has  received  from  a  third  person ;  which  he  claims  title  to,  in 
opposition  to  the  plaintiff's  right ;  and  which  he  had  by  law  authority 
to  receive  from  such  third  person. 

3d  Objection.  Where  money  has  been  recovered  by  the  judgment 
of  a  court  having  competent  jurisdiction,  the  matter  can  never  be 
brought  over  again  by  a  new  action. 

Answer.  It  is  most  clear  "that  the  merits  of  a  judgment  can  never 
be  over-haled  by  an  original  suit,  either  at  law  or  in  equity."  Till 
the  judgment  is  set  aside  or  reversed,  it  is  conclusive,  as  to  the  sub- 
ject-matter of  it,  to  all  intents  and  purposes. 

But  the  ground  of  this  action  is  consistent  with  the  judgment  of 
the  Court  of  Conscience ;  it  admits  the  commissioners  did  right. 
They  decreed  upon  the  indorsement  of  the  notes  by  the  plaintiff, 
which  indorsement  is  not  now  disputed.  The  ground  upon  which 
this  action  proceeds  was  no  defense  against  that  sentence. 

It  is  enough  for  us,  that  the  commissioners  adjudged  "they  had 
no  cognizance  of  such  collateral  matter."  We  cannot  correct  an  er- 
ror in  their  proceedings ;  and  ought  to  suppose  what  is  done  by  a 
final  jurisdiction,  to  be  right.  But  we  think  "the  commissioners  did 
right,  in  refusing  to  go  into  such  collateral  matter."  Otherwise,  by 
way  of  defense  against  a  promissory  note  for  30^^.^  they  might  go 
into  agreements  and  transactions  of  a  great  value ;  and  if  they  de- 
creed payment  of  the  note,  their  judgment  might  indirectly  conclude 
the  balance  of  a  large  account. 

The  ground  of  this  action  is  not  "that  the  judgment  was  wrong," 
but  "that  (for  a  reason  which  the  now  plaintiff  could  not  avail  him- 
self of  against  that  judgment)  the  defendant  ought  not  in  justice 
to  keep  the  money."  And  at  Guildhall  I  declared  very  particularly, 
"that  the  merits  of  a  question  determined  by  the  commissioners, 
where  they  had  jurisdiction,  never  could  be  brought  over  again  in 
any  shape  whatsoever." 

Money  may  be  recovered  by  a  right  and  legal  judgment;  and  yet 


534  COMPULSION    OF    LAW. 

the  iniquity  of  keeping  that  money  may  be  manifest,  upon  grounds 
which  could  not  be  used  by  way  of  defense  against  the  judgment. 

Suppose  an  indorsee  of  a  promissory  note,  having  received  pay- 
ment frOm  the  drawer  (or  maker)  of  it,  sues  and  recovers  the  same 
money  from  the  indorser,  who  knew  nothing  of  such  payment. 

Suppose  a  man  recovers  upon  a  policy  for  a  ship  presumed  to  be 
lost,  which  afterwards  comes  home ;  or  upon  the  life  of  a  man  pre- 
sumed to  be  dead,  who  afterwards  appears  ;  or  upon  a  representa- 
tion of  a  risk  deemed  to  be  fair,  which  comes  out  afterwards  to  be 
grossly  fraudulent. 

But  there  is  no  occasion  to  go  further;  for  the  admission  "that, 
unquestionably,  an  action  might  be  brought  upon  the  agreement,"  Is 
a  decisive  answer  to  any  objection  from  the  judgment.  For  it  is  the 
same  thing,  as  to  the  force  and  validity  of  the  judgment,  and  it  is 
just  equally  affected  by  the  action,  whether  the  plaintiff  brings  it 
upon  the  equity  of  his  case  arising  out  of  the  agreement,  that  the 
defendant  may  refund  the  money  he  received ;  or,  upon  the  agree- 
ment itself,  that,  besides  refunding  the  money,  he  may  pay  the  costs 
and  expenses  the  plaintiff  was  put  to. 

This  brings  the  whole  to  the  question  saved  at  nisi  prius,  viz. : 
"Whether  the  plaintiff  may  elect  to  sue  by  this  form  of  action,  for 
the  money  only ;  or  must  be  turned  round,  to  bring  an  action  upon 
the  agreement." 

'  One  great  benefit  which  arises  to  suitors  from  the  nature  of  this 
action  is,  that  the  plaintiff  needs  not  state  the  special  circumstances 
from  which  he  concludes  "that,  ex  ccquo  et  bono,  the  money  received 
by  the  defendant  ought  to  be  deemed  as  belonging  to  him ;"  he  may 
declare  generally  "that  the  money  was  received  to  his  use,"  and  make 
out  his  case  at  the  trial. 

This  is  equally  beneficial  to  the  defendant.  It  is  the  most  favor- 
able way  in  which  he  can  be  sued :  he  can  be  liable  no  further  than 
the  money  he  has  received  ;  and  against  that  may  go  into  every  equi- 
table defense  upon  the  general  issue :  he  may  claim  every  equitable 
allowance ;  he  may  prove  a  release  without  pleading  it ;  in  short,  he 
may  defend  himself  by  everything  which  shows  that  the  plaintiff, 
ex  ceqno  et  bono,  is  not  entitled  to  the  whole  of  his  demand,  or  to  any 
part  of  it. 

If  the  plaintiff  elects  to  proceed  in  this  favorable  way,  it  is  a  bar 
to  his  bringing  another  action  upon  the  agreement ;  though  he  might 
recover  more  upon  the  agreement  than  he  can  by  this  form  of  action. 
And  therefore,  if  the  question  was  open  to  be  argued  upon  princi- 
ples at  large,  there  seems  to  be  no  reason  or  utility  in  confining  the 
plaintiff  to  an  action  upon  the  special  agreement  only. 

But  the  point  has  been  long  settled,  and  there  have  been  many 
precedents ;  I  will  mention  to  you  one  only,  which  was  very  solemnly 
considered.  It  was  the  case  of  Dutch  v.  Warren,  M.  7  G.  i  C.  B. 
An  action  upon  the  case  for  money  had  and  received  to  the  plaintiff'.^ 
use. 

The  case  was  as  follows  :    Upon  the  i8th  of  August,  1720,  on  pay- 


MONEY    PAID    AFTER    JUDGMENT.  535 

ment  of  262!.  los.  by  the  plaintiff  to  the  defendant,  the  defendant 
agreed  to  transfer  him  five  shares  in  the  Welsh  copper  mines,  at  the 
opening  of  the  books  ;  and  for  security  of  his  so  doing  gave  him  this 
note:  "i8th  of  August,  1720.  I  do  hereby  acknowledge  to  have  re- 
ceived of  Phihp  Dutch  262/.  los.  as  a  consideration  for  the  purchase 
of  five  shares ;  which  I  do  hereby  promise  to  transfer  to  the  said 
PhiHp  Dutch  as  soon  as  the  books  are  open,  being  five  shares  in  the 
Welsh  copper  mines.  Witness  my  hand,  Robert  Warren."  The 
books  were  opened  on  the  22d  of  the  said  month  of  August,  when 
Dutch  requested  Warren  to  transfer  to  him  the  said  five  shares ; 
which  he  refused  to  do,  and  told  the  plaintiff  "he  might  take  his  rem- 
edy." Whereupon  the  plaintiff  brought  this  action  for  the  consider- 
ation-money paid  by  him.  And  an  objection  was  taken  at  the  trial, 
"that  this  action  upon  the  case,  for  money  had  and  received  to  the 
plaintiff's  use,  would  not  lie ;  but  that  the  action  should  have  been 
brought  for  the  non-performance  of  the  contract."  This  objection 
was  overruled  by  the  Chief  Justice,  who  notwithstanding  left  it 
to  the  consideration  of  the  jury,  whether  they  would  not  make  the 
price  of  the  said  stock  as  it  was  upon  the  22d  of  August,  when  it 
should  have  been  delivered,  the  measure  of  the  damages ;  which  they 
did,  and  gave  the  plaintiff  but  175/.  damages. 

And  a  case  being  made  for  the  opinion  of  the  Court  of  Common 
Pleas,  the  action  was  resolved  to  be  well  brought ;  and  that  the  re- 
covery was  right,  being  not  for  the  whole  money  paid,  but  for  the 
damages  in  not  transferring  the  stock  at  the  time ;  which  was  a  loss 
to  the  plaintiff',  and  an  advantage  to  the  defendant,  who  was  a  re- 
ceiver of  the  difference-money,  to  the  plaintiff's  use. 

The  court  said,  that  the  extending  those  actions  depends  on  the 
notion  of  fraud.  If  one  man  takes  another's  money  to  do  a  thing, 
and  refuses  to  do  it,  it  is  a  fraud ;  and  it  is  at  the  election  of  the  party 
injured,  either  to  affirm  the  agreement,  by  bringing  an  action  for  the 
non-performance  of  it,  or  to  disaffirm  the  agreement  ab  initio,  by 
reason  of  the  fraud,  and  bring  an  action  for  money  had  and  received 
to  his  use. 

The  damages  recovered  in  that  case  show  the  liberality  with  which 
this  kind  of  action  is  considered ;  for  though  the  defendant  received 
from  the  plaintiff  262/.,  icy.,  yet  the  difference-money  only,  of  175/., 
was  retained  by  him  against  conscience ;  and  therefore  the  plaintiff. 
ex  ceqiio  et  bono,  ought  to  recover  no  more ;  agreeable  to  the  rule  of 
the  Roman  law :  "Quod  condictio  indehiti  non  datiir  tdtra,  qtiani 
locupletior  f actus  est  qui  acccpit." 

If  the  five  shares  had  been  of  much  more  value,  yet  the  plaintiff 
could  only  have  recovered  the  262/.  \os.  by  this  form  of  action. 

The  notion  of  fraud  holds  much  more  strongly  in  the  present  case 
than  in  that,  for  here  it  is  express.  The  indorsement  which  enabled 
the  defendant  to  recover  was  got  by  fraud  and  falsehood  for  one 
purpose,  and  abused  to  another. 

This  kind  of  equitable  action  to  recover  back  money  which  ought 
not  in  justice  to  be  kept,  is  very  beneficial,  and  therefore  much  en- 


536  COMPULSION    OF   LAW. 

couraged.  It  lies  only  for  money  which,  ex  cequo  et  bono,  the  de- 
fendant ought  to  refund :  it  does  not  lie  for  money  paid  by  the 
plaintiff,  which  is  claimed  of  him  as  payable  in  point  of  honor  and 
honesty,  although  it  could  not  have  been  recovered  from  him  by  any 
course  of  law, — as  in  payment  of  a  debt  barred  by  the  statute  of  limi- 
tations, or  contracted  during  his  infancy,  or  to  the  extent  of  princi- 
pal and  legal  interest  upon  a  usurious  contract,  or  for  money  fairly 
lost  at  play ;  because  in  all  these  cases  the  defendant  may  retain  it  with 
a  safe  conscience,  though  by  positive  law  he  was  barred  from  recov- 
ering. But  it  lies  for  money  paid  by  mistake,  or  upon  a  considera- 
tion which  happens  to  fail,  or  for  money  got  through  imposition 
(express  or  implied),  or  extortion,  or  oppression,  or  an  undue  ad- 
vantage taken  of  the  plaintiff's  situation,  contrary  to  laws  made  for 
the  protection  of  persons  under  those  circumstances. 

In  one  word,  the  gist  of  this  kind  of  action  is,  that  the  defendant, 
upon  the  circumstances  of  the  case,  is  obliged  by  the  ties  of  natural 
justice  and  equity  to  refund  the  money. 

Therefore  we  are  all  of  us  of  opinion,  that  the  plaintiff  might 
elect  to  waive  any  demand  upon  the  foot  of  the  indemnity,  for  the 
costs  he  had  been  put  to ;  and  bring  this  action  to  recover  the  61. 
which  the  defendant  got  and  kept  from  him  iniquitously. 

Rule.     That  the  postea  be  delivered  to  the  plaintiff.^ 


WALKER  V.  AMES. 
2  Cow.  (N.  Y.)  428.— 1823. 

On  certiorari  to  a  Justice's  Court.  The  action  was  case  in  the 
court  below,  by  Ames  against  Walker ;  "For  that  the  defendant  did 
fraudulently  obtain  a  judgment,  or  a  certain  part  thereof,  against 
the  present  plaintiff,  to  his  damage  $25."  The  defendant  pleaded 
the  former  suit  in  bar,  which  was  overruled  by  the  Justice.  The 
fraud  complained  of  was,  that  Walker,  in  the  suit  against  Ames, 
recovered  on  a  book  account,  and  also  on  a  note  given  by  Ames  to 
Walker,  on  settlement  of  the  same  account  for  the  balance  thereof. 
Verdict  and  judgment  for  the  plaintiff. 

Curia. — The  judgment  must  be  reversed.  This  was  overhauling 
the  first  judgment,  and  attempting  to  recover  back  a  portion  of  it, 
on  the  ground  that  it  was  not  due,  and  had  been  unconscientiously 
recovered.  The  allegation  of  fraud  does  not  alter  the  nature  of  the 
case.  It  is  substantially  an  action  to  recover  back  money  improp- 
erly awarded  by  a  former  judgment;  and  is  precisely  the  case  of 
Harriot  v.  Hampton  (7  T.  R.  269).    In  that  case,  the  defendant  had 

'  See  the  criticism  of  this  case  in  Carter  v.  First  Ecclcs.  Soc,  reported  herein 
at  p.  538. 


MONEY    PAID    AFTER    JUDGMENT.  '537 

recovered  against  the  plaintiff  for  goods  sold.  The  plaintiff  had 
paid  him  for  these  goods  and  taken  his  receipt ;  but  not  being  able 
to  find  the  receipt,  at  the  time  of  the  trial,  judgment  went  against 
him  and  he  paid  the  money  again.  Afterwards,  finding  the  receipt, 
he  brought  his  action  to  recover  it  back.  Lord  Kenyon  says :  "If 
this  action  could  be  maintained,  I  know  not  what  cause  of  action 
could  ever  be  at  rest.  After  a  recovery  by  process  of  law,  there  must 
be  an  end  of  litigation ;  otherwise  there  would  be  no  security  for  any 
person."  The  case  of  Cobb  v.  Curtiss  (8  John.  470)  is  clearly  dis- 
tinguishable. There,  the  action  was  founded  on  an  agreement  to 
discontinue  the  first  suit ;  and  the  court  go  upon  the  ground,  that 
this  agreement  could  not  have  been  set  up  as  a  defense  to  the  sec- 
ond. There  was  nothing  to  prevent  Ames'  showing  upon  the  first 
trial,  that  the  note  included  the  account.  If  he  was  not  prepared 
with  his  proof,  it  was  his  misfortune.  There  would,  indeed,  be  no 
end  to  litigation,  nor  any  security  to  any  person,  if  actions  like  this 
could  be  sustained.  Judgment  reversed.^ 

^In  Fuller  v.  Shattuck,  13  Gray  (Mass.)  70  (1859),  the  court  says  (p.  71)  : 
"In  any  form  of  action  and  under  any  statement  of  the  plaintiff's  case,  the 
objections  to  the  maintenance  of  this  claim  are  equally  decisive.  It  in  effect 
assumes  that  if  a  partial  payment  is  made  on  account  of  a  debt,  upon  which 
the  creditor  afterwards  brings  a  suit  and  recovers  judgment,  the  debtor 
can  recover  back  the  sum  which  he  paid,  by  proving  that  it  was  not  credited 
to  him  in  computing  the  amount  of  the  judgment.  It  is  well  settled,  both 
upon  principle  and  authority,  that  no  such  proof  is  open  to  him.  The  time 
for  it  has  gone  by.  He  has  had  his  day  in  court.  It  was  the  very  thing  he 
might  and  should  have  proved  in  the  suit  in  which  the  judgment  was  re- 
covered. To  allow  him  to  bring  an  action,  and  support  it  by  such  proof, 
would  be  to  allow  him  to  try  over  again  one  of  the  issues  decided  by  the 
judgment;  which  the  law  does  not  allow.  If  a  part  of  the  debt  had  been 
paid  before  the  judgment  was  recovered,  then  the  whole  was  not  due.  But 
the  judgment  is  the  -olemn  adjudication  of  the  court,  between  these  parties, 
that  the  whole  was  due.  Each  party  had  full  opportunity  to  be  heard,  and 
there  must  be  some  end  of  litigation." 

But  see  Snow  v.  Prescott,  12  N.  H.  535  (1842).  Here  the  plaintiff  sold 
and  delivered  a  plough  and  anvil  to  the  defendant,  the  price  of  which  the 
defendant  agreed  to  endorse  upon  a  note  which  he  held  against  the  plaintiff. 
He  did  not  make  the  endorsement  as  he  had  agreed  to,  and  subsequently 
recovered  judgment  against  the  plaintiff  for  the  whole  consideration  of  the 
note,  in  a  suit  thereon  by  default,  and  enforced  its  payment  by  an  execution, 
and  it  was  held  that  the  plaintiff  might  recover  the  price  of  the  articles,  in 
an  action  for  goods  sold  and  delivered,  and  the  case  of  Tilton  v.  Gordon, 
I  N.  H.  Rep.  2>2i,  contra,  was  overruled.  It  was  held  that  the  plaintiff  may 
recover  without  re-examining  the  merits  of  the  judgment,  as  his  right  of 
action  depends,  not  upon  the  rendition  of  the  judgment,  but  upon  the  sale 
and  delivery  of  the  articles,  and  upon  the  defendant's  failure  to  make  the 
indorsement.  The  court  says  (p.  542)  :  "The  plaintiff  in  this  case  is  entitled 
to  recover.  He  sold  and  delivered  the  plough  and  anvil  to  the  defendant, 
who  agreed  to  indorse  their  price  upon  the  note.  This  agreement  he  failed 
to  perform,  and  the  plaintiff  may  consider  this  failure  as  a  rescission  of  the 
agreement.  The  defendant,  then,  has  received  property  of  the  plaintiff  for 
which  he  has  not  paid.  He  cannot  avail  himself  of  his  omission  to  make 
the  indorsement  as  a  defense  to  this  suit,  and  the  plaintiff  may  now  recover 
the  price  of  the  property,  in  this  action." 


^1 


53^  COMPULSION    OF   LAW. 


CARTER  V.   FIRST  ECCLESIASTICAL  SOCIETY  OF 
CANTERBURY. 

3  Conn.  455. — 1820. 

Peters,  J. — It  appears  by  the  motion,  that  on  the  21st  day  of  Jan- 
uary, 181 1,  the  defendants  agreed,  by  vote,  to  sell  the  pews  in  their 
meeting-house,  prescribing  the  form  of  conveyance  to  be  given,  and 
the  security  to  be  taken,  and  appropriated  the  avails,  so  soon  as 
five  thousand  dollars  should  be  raised,  if  raised  before  the  ist  day 
of  September  then  next,  as  a  perpetual,  permanent  and  invariable 
fund,  for  the  maintenance  of  the  gospel,  and  an  orthodox  minister ; 
that  the  requisite  sum  was  seasonably  raised,  by  a  sale  of  the  pews, 
whereof  the  plaintiff  became  a  purchaser  of  one,  and  therefor  gave 
his  note,  dated  March  29,  181 1,  for  one  hundred  and  fifty  dollars, 
payable  to  the  treasurer,  on  the  ist  day  of  April,  1812,  with  interest 
annually ;  which  interest,  amounting  to  thirty-six  dollars,  was  regu- 
larly paid,  by  the  plaintiff,  until  the  first  day  of  February,  1816,  when 
the  note  was  sued,  judgment  obtained  and  execution  taken  out,  and 
satisfied  on  the  real  estate  of  the  plaintiff;  that  in  October,  1812,  an 
orthodox  minister  was  settled  in  the  society,  and  the  interest  of  the 
fund  duly  applied  to  his  support,  until  January  15,  1818,  when  the 
defendants  voted  to  change  the  mode  of  supporting  the  minister,  and 
give  up  the  notes  received  for  pews  sold,  on  the  purchasers  paying 
the  interest  accrued,  and  releasing  the  pews  to  the  society. 

Upon  these  facts,  the  plaintiff,  by  the  two  first  counts  in  his  dec- 
laration, claimed  to  recover  the  amount  of  the  execution,  obtained 
against  him  by  the  defendants,  and  the  sheriff's  fees  thereon ;  and  by 
the  third  count,  the  amount  of  interest  paid  on  his  note.  But  the 
court  directed  the  jury  to  find  for  the  defendants. 

To  entitle  the  plaintiff  to  a  verdict,  the  case  of  Moses  v.  Macfer- 
lan,  2  Burr.  1005,  must  be  revived.  But  the  authority  of  that  case 
has  been  too  often  shaken  to  have  any  weight  at  the  present  day : 
O'Harre  v.  Hall,  4  Dall.  340.  Though  the  principles  relating  to 
indebitatus  assumpsit,  so  luminously  illustrated  in  Moses  v.  Mac- 
ferlan,  have  been  universally  recognized,  their  application  to  that 
case  has  been  generally  reprobated  by  the  bench  as  well  as  the  bar. 
In  that  case,  money  obtained  from  the  plaintiff,  pursuant  to  a  judg- 
ment of  a  court  then  in  force,  was  recovered  back,  on  proof  of  facts 
dehors  the  record,  whereby  it  appeared,  that  the  defendant,  ex  aequo 
et  bono  ought  not  to  retain  it.  This  has  been  considered  as  an  over- 
haling  or  impeaching  of  a  judgment,  indirectly.  But  Lord  Mans- 
field himself,  in  that  very  case,  informs  us,  "that  the  merits  of  a 
judgment  cannot  be  over-haled  by  an  original  suit,  either  at  law  or 
in  equity.  Till  the  judgment  is  set  aside,  or  reversed,  it  is  conclusive 
as  to  the  subject  matter  of  it,  to  all  intents  and  purposes."  P.  1009. 
How,  then,  could  it  be  against  conscience  for  Macferlan  to  retain 
this  money,  thus  awarded  him,  by  a  court  of  justice,  merely  because 


MONEY    PAID    AFTER    JUDGMENT.  539 

he  had  violated  his  agreement,  for  which  he  was  Hable  in  damages, 
but  not  to  refund  the  money  he  had  recovered.  Well  might  he  have 
said  "Non  in  haec  focdera  veni." 

In  Marriott  v.  Hampton,  7  Term  Rep.  269,  where  the  plaintiff, 
having  paid  a  debt,  and  taken  and  lost  a  receipt,  was  sued,  and 
obliged  to  pay  it  again,  but  afterward  finding  the  receipt,  he  brought 
assumpsit  for  the  money  ;  Lord  Kenyon  was  of  opinion,  that  after 
a  recovery  by  process  of  law,  there  must  be  an  end  of  litigation ; 
that  money  paid  under  such  process,  could  not  be  recovered  back, 
how  unconscientiously  soever  retained. 

The  case  of  Phillips  et  al.  v.  Hunter  et  al.,  in  err.,  2  H.  Bla.  402, 
has  been  supposed  to  establish  a  contrary  doctrine.  But  that  case 
was  decided  on  the  principles  of  the  bankrupt  laws,  regardless  of 
Moses  V.  Macferlan.  Lord  Ch.  J.  Eyre  thought  that  no  other  de- 
cided case  covmtenanced  such  an  action,  and  combated  it  forcibly 
and  conclusively,  "Shall  the  same  judgment,"  said  that  learned 
judge,  "create  a  duty  for  the  recoverer,  upon  which  he  may  have 
debt,  and  a  duty  against  him,  upon  which  an  action  for  money  had 
and  received,  will  lie?  This  goes  beyond  my  comprehension.  I  be- 
lieve that  judgment  did  not  satisfy  Westminster  Hall  at  the  time. 
I  never  could  subscribe  to  it ;  it  seemed  to  me  to  unsettle  founda- 
tions." P.  416.  Though  this  was  the  opinion  of  one  judge  only,  it 
has  since  been  quoted  with  approbation,  by  Ch.  J.  Kent,  on  deliver- 
ing the  opinion  of  the  court  in  Smith  v.  Lewis,  3  Johns.  Rep.  157, 
and  following  hand  passibiis  aequis  the  example  of  Lord  Ellen- 
borough,  in  Imly  v.  Ellefsen,  2  East  453,  and  of  the  supreme  court 
of  New  York,  in  Smith  v.  Spinola,  2  Johns.  Rep.  198,  I  have  no 
hesitation  in  saying  that  it  is  the  better  opinion,  and  is  to  be  adopted 
as  law.^ 

But  this  is  not  the  only  objection  to  the  plaintiff's  recovery.  The 
defendants  have  received  no  money  as  the  avails  of  their  judgment: 
they  have  only  acquired  a  title  to  real  estate,  of  which  the  plaintiff 
may  divest  them,  on  a  proper  application  to  the  proper  court.  This 
is  a  novel  attempt  to  convert  land  acquired  by  execution  into  money 
had  and  received ;  and  it  may  be  added,  as  a  conclusive  answer  to 
the  plaintiff's  claim,  that  he  retains  the  pew  for  which  the  note  was 
given ;  the  consideration  of  which  has  not  failed,  and,  therefore, 
could  not  be  recovered  back,  even  if  it  had  been  in  money. 

With  respect  to  the  money  claimed  in  the  third  count,  it  was  vol- 

*  Accord,  Kirklan  &  Hickson  v.  Brown's  Adm'rs,  4  Humph.  (Tenn.)  174 
(1843),  the  court  saying:  "In  the  great  case  of  Moses  v.  INIacferlan,  2  Burr. 
IOCS,  the  ex  cequo  ct  bono  principle'  of  the  action  of  assumpsit,  announced 
by  Lord  Mansfield,  as  well  as  the  facts  and  circumstances  of  that  case,  might 
seem  to  give  some  ground  for  the  maintenance  of  a  suit  like  this.  But 
of  that  case,  as  well  as  of  some  others  determined  by  Lord  M.\nsfield,  it 
may  be  said,  ntaferiam  superavit  opus.  The  great  principles  marked  out  and 
developed  by  his  original  and  powerful  intellect  remain  to  guide  us;  but 
their  framework,  the  facts  and  circumstances  to  which  they  were  appended, 
not  always  appropriate,  have  in  some  instances  given  way  and  ceased  to 
sustain  them." 


540  COMPULSION   OF   LAW. 

untarily  paid  by  the  plaintiff,  on  his  own  note,  then  justly  due,  and 
has  been  appropriated  and  applied,  by  the  defendants,  to  the  use  for 
which  it  was  intended  by  the  plaintiff. 

I  would  not  advise  a  new  trial. 

The  other  judges  were  of  the  same  opinion,  except  Hosmer,  Ch. 
J.,  who,  not  having  heard  the  case  argued,  gave  no  opinion. 


HIPP  V.  CRENSHAW. 

64  Iowa  404. — 1884. 

Reed,  J. — At  the  December  term,  1883,  an  opinion  was  filed  in 
this  case  affirming  the  judgment  of  the  circuit  court.  Appellant 
thereupon  filed  a  petition  for  a  rehearing,  which  was  sustained,  and 
the  cause  was  reargued  by  counsel.  Since  the  final  submission  of 
the  cause,  plaintiff  has  filed  a  motion  to  dismiss  the  appeal,  on  the 
ground  that  defendant  has  fully  performed  the  judgment  from 
which  the  appeal  was  taken.  It  is  shown  in  support  of  this  motion, 
that  since  the  opinion  was  filed  defendant  has  paid  to  the  clerk  of 
the  circuit  court  a  sum  of  money  which  both  he  and  the  clerk  sup- 
posed was  the  full  amount  of  the  judgment  and  costs,  but  which 
was,  in  fact,  a  few  dollars  less  than  such  amount,  and  that  plaintiff's 
attorney  has  received  the  amount  and  entered  satisfaction  of  the 
judgment.  Defendant  has  filed  his  affidavit  in  resistance  of  the  mo- 
tion, in  which  he  swears  that  his  financial  circumstances  were  such 
that  he  was  compelled  to  procure  a  loan  of  money,  and  that,  to  en- 
able him  to  procure  such  loan,  he  was  compelled  to  give  a  mortgage 
on  certain  real  estate  to  secure  the  same,  and,  as  the  judgment  was 
a  lien  on  said  real  estate,  he  was  also  compelled  to  remove  such  lien 
before  the  parties  from  whom  he  had  arranged  to  procure  the  loan 
would  consent  to  accept  the  mortgage  as  security  therefor. 

His  claim  is  that  the  payment  of  the  money  to  the  clerk  was  not 
voluntary.  But  we  think  it  very  clear  that  this  position  is  not  ten- 
able. A  payment  under  such  circumstances  is  not  a  payment  under 
duress.  All  that  can  be  claimed  is  that  defendant  found  it  to  his 
advantage  to  discharge  the  lien  of  the  judgment,  and  paid  the  money 
for  that  purpose,  and  to  enable  him  to  procure  the  loan.  We  think 
the  motion  to  dismiss  the  appeal  must  be  sustained.  But,  as  some 
members  of  the  court  are  not  satisfied  with  the  conclusion  reached 
by  the  former  opinion,  it  will  be  withheld  from  publication. 

Dismissed. 


MONEY    PAID    AFTER   JUDGMENT.  54I 

CLARK  &  CLARK  v.  PINNEY. 
6  Cow.  (N.  Y.)  297.— 1826. 

Assumpsit  for  money  had  and  received. 

On  the  trial,  the  plaintiff's  counsel  offered  in  evidence  the  record  of 
a  judgment  in  the  Onondaga  Common  Pleas  of  the  term  of  February, 
1822,  in  favor  of  the  defendant  against  the  plaintiffs,  for  $193.11  ; 
a  ft.  fa.  indorsed  satisfied  by  the  sheriff,  June  21,  1822,  except 
sheriff's  fees ;  that  the  execution  was  paid  by  a  note  of  Walker  & 
Clark,  by  which  they  promised  the  defendant  to  pay  him  $181.27 
on  the  1st  day  of  February,  1823,  with  interest,  provided  the  judg- 
ment in  the  Common  Pleas  should  not  be  reversed  before  that  day. 
That  this  was  received  as  and  toward  payment  of  the  judgment  by 
Pinney  and  his  attorney.  The  counsel  also  offered  the  record  of  a 
judgment  for  $216.73  ^^  ^^^^  Onondaga  Common  Pleas  on  this  note, 
recovered  at  May  term,  1823,  and  an  execution  returnable  at  the 
next  August  term,  which  had  been  paid  before  the  return  day,  and 
was  returned  by  the  sheriff  satisfied.  They  also  offered  an  exempli- 
fication of  a  judgment  record  in  the  supreme  court  in  favor  of  the 
present  plaintiffs  against  the  present  defendant,  whereby  it  appeared 
that  the  judgment  first  above  mentioned  had  been  reversed  on  a  writ 
of  error,  at  the  October  term,  1824.  All  these  facts  were  admitted 
by  the  defendant's  counsel,  on  whose  motion  the  judge  nonsuited 
the  plaintiffs,  with  leave  to  move  to  set  aside  the  nonsuit,  and  for  a 
new  trial. 

Curia,  per  Savage,  C.  J. — The  important  question  in  this  case  is, 
whether  indebitatus  assumpsit  lor  money  had  and  received  lies  to 
recover  money  paid  on  an  execution  upon  a  judgment  which  was 
afterward  reversed. 

The  general  proposition  is,  that  this  action  lies  in  all  cases  where 
the  defendant  has  in  his  hands  money  which,  ex  aequo  et  bono,  be- 
longs to  the  plaintiff.  When  money  is  collected  upon  an  erroneous 
judgment  which,  subsequent  to  the  payment  of  the  money,  is  re- 
versed, the  legal  conclusion  is  irresistible,  that  the  money  belongs 
to  the  person  from  whom  it  was  collected.  Of  course  he  is  entitled 
to  have  it  returned  to  him.  The  only  question  is,  whether  this  be 
the  proper  remedy. 

The  cases  referred  to  by  counsel  do  not  fully  decide  the  point : 
nor  have  I  found  any  case  where  this  very  point  has  been  decided 
except  Green  v.  Stone,  i  Har.  &  John.  405.  It  was  raised  in  Isom 
V.  Johns,  2  Munf.  272.  There  the  defendant  had  been  plaintiff  in 
a  former  action  ;  recovered  judgment,  and  issued  execution,  upon 
which  the  defendant's  property  was  sold  by  the  sheriff.  On  the 
argument,  most  of  the  English  cases  which  are  now  cited  were  re- 
ferred to.  The  court  decided  against  the  plaintiff  on  the  ground 
that  the  money  did  not  appear  to  have  come  to  the  defendant's  use ; 


542  COMPULSION    OF    LAW. 

not  denying  the  doctrine,  however,  that,  if  the  defendant  had  re- 
ceived the  money,  the  plaintiff  might  recover  it  in  this  action. 

In  Green  v.  Stone  this  very  point  was  decided  in  favor  of  the 
plaintiffs. 

The  principle  in  question  is  supposed  to  have  been  acted  on  in 
Feltham  v.  Terry,  Lofft  207,  which  was  an  action  for  money  had 
and  received  by  the  church  wardens  against  the  overseers  of  the 
poor,  for  money  levied  by  the  latter,  on  a  conviction  of  one  of  the 
former,  which  was  subsequently  quashed.  The  court  held  the  plain- 
tiff might  sue  for  the  money  collected  by  a  sale  of  the  property ; 
or,  by  bringing  trespass,  he  might  have  recovered  the  value  of  the 
property.  This  conviction,  I  apprehend,  must  have  been  irregu- 
lar ;  otherwise  the  court  would  not  have  said  trespass  might  have 
been  brought.  Trespass  surely  would  not  lie  for  collecting  the 
amount  of  a  judgment  which  was  merely  erroneous.  In  that  case, 
therefore,  the  court  must  have  acted  on  the  principle  that  the  money 
was  collected  by  a  void  authority.  The  authorities  are  clear  and 
abundant  that,  in  such  a  case,  indebitatus  assumpsit  lies,  i  Bac. 
Abr.  261 ;  Newdigate  v.  Davy,  i  Ld.  Raym.  742. 

In  the  case  of  Alead  v.  Death  &  Pollard,  i  Ld.  Raym.  742,  it  was 
decided  that  money  paid  upon  an  order  of  the  Quarter  Sessions 
could  not  be  recovered  back,  though  the  order  had  been  quashed 
on  certiorari.  And  Tracy,  Baron,  before  whom  the  cause  was 
tried,  compared  it  to  the  case  where  money  is  paid  upon  a  judgment 
which  is  afterward  reversed  for  error,  in  which  case  indebitatus  as- 
sumpsit will  not  lie.  No  reason  is  given  why  this  action  will  not 
lie ;  nor  is  any  case  referred  to  in  support  of  the  dictum.  It  is 
shown,  however,  that  in  the  English  courts  the  proper  remedy,  upon 
the  reversal  of  a  judgment,  is  a  scire  facias  quarc  rcstitutionem  non, 
upon  which  the  party  recovers  all  that  he  has  lost  by  reason  of  the 
judgment.  Com.  Dig.  (3  B.  20)  Cro.  Car.  699.  And  if  it  appear 
on  the  record  that  the  money  is  paid,  restitution  will  be  awarded 
without  a  scire  facias,  2  Salk.  588. 

Cases  have  been  cited  in  which  it  is  said  that  this  action  does  not 
lie  to  recover  money  collected  under  legal  process  afterward  va- 
cated, which  is  true  as  applied  to  those  cases  ;  but  the  principle  is 
not  applicable  in  this  case. 

Upon  the  whole,  my  view  of  the  question  is  this :  the  general  prin- 
ciple is,  undoubtedly,  in  favor  of  sustaining  the  action.  Isom  v. 
Johns,  decided  by  the  court  of  appeals  of  Virginia,  is  a  plain  recog- 
nition of  the  principle  as  governing  this  very  case ;  and  Green  v. 
Stone  is  an  authority  in  point.  These  are  opposed  only  by  a  nisi 
prius  decision,  at  a  time  when  the  action  for  money  had  and  received 
had  not  come  into  general  use.  I  am  inclined  to  sustain  the  action. 
The  inclination  of  courts  is  to  extend  the  action  for  money  had  and 
received.  It  is  not  denied  that  the  plaintiff  is  entitled  to  some 
remedy  for  the  money,  though  it  was  taken  from  him  by  process 
erroneous  merely.    Then,  why  turn  him  round  from  this  simple  ac- 


MONEY    PAID    AFTER    JUDGMENT.  543 

tion  to  the  antiquated  remedy  by  scire  facias?     I  do  not  think  the 
purposes  of  justice  require  it. 

It  is  also  contended  that  the  facts  in  this  case  do  not  amount  to  a 
payment  of  money  to  the  defendant.  A  note  was  received  by  the 
sheriff  as  payment  of  the  execution,  by  the  direction  of  the  plaintiff 
and  his  attorney.  And  the  execution  was  returned  satisfied.  Nay, 
more;  a  judgment  has  been  obtained;  and  the  money  actually  paid 
upon  that  note.  To  what  would  the  plaintiffs  be  restored  on  a  sci. 
fa.?  To  the  money  paid  by  the  note,  as  money.  Restitution  could 
be  of  nothing  else.  The  difficulty  in  Isom  v.  Johns  was  that  the  sheriff 
could  not  be  held  the  plaintiff's  agent.  The  facts  show  him  to  be 
so  in  this  case. 

In  my  opinion  there  should  be  a  new  trial. 

New  trial  granted.^ 


DUNCAN  V.  WARE'S  EXECUTORS. 
5  S.  &  P.  (Ala.)  119.— 1833. 

John  Duncan,  for  the  use  of  another,  declared  against  Ware, 
Cowles  and  Robertson,  executors  of  the  last  will  and  testament  of 
Robert  Ware,  in  assumpsit.    Judgment  for  defendants. 

In  1826,  Robert  Ware,  the  testator,  recovered  a  judgment  in  the 
circuit  court  of  Montgomery  county,  against  Lawrence,  Rapelye  & 
Co.,  of  New  York,  by  process  of  foreign  attachment,  for  the  sum 
of  $2,032.29;  at  the  same  time,  the  said  Robert  Ware  obtained  judg- 
ment against  John  Duncan,  the  plaintiff",  as  a  garnishee  in  said  at- 
tachment, for  the  sum  of  $377 — which  was  rendered  upon  the  an- 
swer of  Duncan,  under  oath,  acknowledging  his  indebtedness  to  the 
defendants  in  the  attachment,  in  that  amount ;  that  said  Duncan  paid 
to  the  said  Ware,  testator,  the  said  amount  under  execution.  That 
afterward,  and  since  the  payment  by  Duncan,  the  judgment  ren- 
dered in  the  attachment  cause,  against  Lawrence,  Rapelye  &  Co. 
was  reversed.  It  was  admitted,  Lawrence,  Rapelye  &  Co.  owed  to 
the  said  testator  the  amount  of  the  said  judgment,  so  rendered  in 
his  favor ;  and  that  the  said  sum  of  $377  had  not  been  paid  by  Dun- 
can, in  any  other  manner  than  as  aforesaid.     Under  this  state  of 

*  Accord,  see  Scholey  v.  Mumford,  ante  p.  474,  note. 

In  Mann  and  another  v.  ^tna  Insurance  Co.,  38  Wis.  114  (1875),  "plaintiffs 
covenanted  with  A.,  S.  &  Co.,  for  value,  to  discharge  all  indebtedness  and 
liabilities  of  the  latter  firm,  indemnify  it  against  an  action  by  the  present 
defendant  against  it,  then  pending  in.  New  York,  and  pay  any  judgment 
which  should  be  rendered  against  it  therein.  On  a  judgment  rendered 
against  A.,  S.  &  Co.,  in  that  action,  this  defendant  recovered  a  judgment  in 
Wisconsin  against  that  firm,  which  was  paid  by  the  plaintiffs,  but  afterwards 
vacated  on  their  motion,  for  the  reason  that  the  New  York  judgment  had 
been  reversed.  Held,  that  such  payment  by  plaintiffs  was  not  a  voluntary 
one,  but  one  to  which  they  were  bound  by  their  covenant;  and  they  may 
recover  from  this  defendant  the  amount  so  paid."    (Syllabus.) 


544  COMPULSION    OF    LAW. 

facts,  the  present  action  was  brought  to  recover  the  amount  paid  by 
the  garnishee,  as  aforesaid. 

Taylor,  J. — *  *  *  :ic  Assumpsit  is  an  equitable  action — ad- 
mitting every  defense,  with  but  few  exceptions,  to  which  the  de- 
fendant is  entitled,  in  equity  and  good  conscience.  As  between  the 
defendants  and  Lawrence,  Rapelye  &  Co.,  in  equity  and  good  con- 
science, the  defendants  certainly  are  not  bound  to  refund  the  money. 
By  a  judgment  which  was  irregular,  and  for  that  reason  reversed, 
the  amount  of  a  debt,  justly  due,  was  recovered  and  paid  to  the  de- 
cedent. In  this  situation,  he  was  not  authorized  to  renev/  his  suit ; 
his  debt  was  paid,  and  if  Lawrence,  Rapelye  &  Co.  were  permitted 
to  recover  against  him,  would  it  not  place  him  in  a  worse  situation 
than  if  the  money  had  not  been  collected  ?  He  must  wait  until  they 
recover  from  him  before  he  sues  them ;  or,  without  suit,  he  must  re- 
fund to  them,  money,  to  which  he  is  justly  entitled,  and  which  they 
owe  him,  that  he  may  be  authorized  to  institute  a  suit  against  them, 
and  recover  the  same  money  back  again.  This  cannot  be  tolerated. 
If  an  irregular  judgment  has  been  obtained,  and  the  money  recov- 
ered for  a  debt  justly  due,  proof  that  the  debt  was  due  affords  a 
good  defense  in  an  action  of  assumpsit  brought  to  recover  the 
money  back,     i  Harris  &  Johns.  405. 

But  the  plaintiff  paid  as  garnishee :  does  this  place  the  defendants 
in  a  worse  situation?  Does  the  reversal  of  the  judgment  render 
the  garnishee  liable  to  the  defendant  in  the  attachment?  If  the  re- 
versal had  taken  place  upon  the  merits,  showing  that  no  debt  was 
due  from  the  defendants  to  the  attachment,  it  is  doubtful  whether 
a  payment  made  by  the  garnishee  before  that  reversal  would  au- 
thorize him  to  maintain  an  action.  His  payment  under  the  judg- 
ment would  probably  be  considered  a  discharge  of  the  debt  to  his 
creditor ;  and,  if  that  creditor  did  not  owe  the  plaintiff  in  the  at- 
tachment, he  should  resort  to  him,  and  the  garnishee  would  probably 
be  discharged.  A  debt  due  from  a  garnishee,  we  are  inclined  to 
think,  should  be  considered,  in  all  respects,  as  property  of  the  de- 
fendant, especially  after  that  debt  has  been  paid,  under  the  process 
of  the  court.  But  where  the  debt  is  confessedly  due  from  the  de- 
fendant in  attachment  to  the  plaintiff,  we  have  no  doubt,  a  payment 
by  the  garnishee,  of  the  judgment  recovered  against  him  as  such, 
fully  discharges  him  from  his  creditor ;  and,  therefore,  that,  in  this 
case,  Lawrence,  Rapelye  &  Co.  have  no  claim  against  the  plaintiff. 

The  judgment  must  be  affirmed.^ 

*  Accord,  Teascdale  v.  Stoller,  133  Mo.  645  (1896),  an  action  to  recover 
money  paid  on  a  jiulKnu-nt  afterwards  reversed,  the  court  saying  (p.  652)  : 
"The  justice  of  the  defendants'  original  claim  is  not  only  shown  by  the  con- 
ceded facts  of  this  case,  but  the  justice  of  the  judgment  set  aside  was  estab- 
lished in  the  judgment  of  this  court  upon  appeal  therefrom.  The  defendants 
lost  the  benefit  thereof  merely  by  "a  slip"  in  their  own  procedure,  and  ought 
not  to  be  compelled  to  refund  the  money  which  they  rightfully  received, 
and  which,  in  equity  and  good  conscience,  they  may  retain." 

In  Dupuy  v.  Roebuck,  7  Ala.  484  (1845),  the  court  says    (p.  486):    "The 


Y 


MONEY    PAID    AFTER    JUDGMENT.  545 

/\  CAROLINE  GOULD  v.  McFALL. 


118  Pa.  St.  455-— i^ 


S' 


On  November  14,  1880,  Robert  McFall  recovered  a  judgment 
against  William  L.  Gould  and  Caroline  Gould,  his  wife,  for  gro- 
ceries and  provisions  furnished.  Mrs.  Gould  took  an  appeal  to  the 
court  of  common  pleas.  On  October  26,  1883,  the  cause  being 
called  for  trial,  the  defendants  did  not  appear,  and  judgment  was 
entered  against  them  for  $25.26,  with  interest  from  July  3,  1880. 
Afterward  executions  were  issued,  a  levy  made  upon  real  estate  of 
Mrs.  Gould,  and  a  sherifif's  sale  advertised  for  the  first  Monday  of 
April,  1885.  On  the  Thursday  before  the  sale  was  to  be  had  Mrs. 
Gould,  with  an  attorney,  met  the  plaintiff's  attorney  at  sheriff's  of- 
fice and  paid  the  debt,  interest  and  costs,  directing  the  writ  to  be  re- 
turned, money  made.  In  the  meantime,  on  January  31,  1885,  the 
attorney  of  record  for  the  defendants  had  taken  a  writ  of  error  to  the 
judgment  entered  in  the  court  of  common  pleas,  which  judgment,  on 
January  4,  1886,  was  reversed  and  set  aside  by  this  court  so  far  as 
it  affected  Mrs.  Gould:  reported:  Gould  v.  McFall,  iii  Pa.  66. 
Subsequently,  on  petition,  a  rule  was  granted  upon  the  plaintiff  to 
show  cause  why  a  v/rit  of  restitution  should  not  issue,  returnable 
to  January  23,  1886. 

An  answer  having  been  filed,  testimony  was  taken  before  an  ex- 
aminer, from  which  it  appeared  that  the  debt,  interest  and  costs 
upon  the  writ  of  execution  had  been  paid  by  Mrs.  Gould,  as  before 
stated ;  that  the  purpose  in  view  was  to  save  her  house  and  lot  from 
a  sale  by  the  sheriff,  and  enable  her  to  make  title  for  the  same  to 
one  Scott,  to  whom  she  had  contracted  to  convey  it.  Her  convey- 
ance to  Scott  was  made  in  a  week  or  two  after  the  payment.    There 

action  of  assumpsit  for  money  had  and  received,  has  been  sometimes  assimi- 
lated to  a  bill  in  equity,  and  the  true  test  of  the  plaintiff's  right  to  recover, 
said  to  depend  upon  the  fact,  whether  the  defendant  can,  in  equity  and  good 
conscience,  retain  the  money  sought  to  be  recovered.  Although  the  law  is 
thus  generally  stated,  the  adjudged  cases  show  what  is  meant  by  an  equitable 
right  to  retain  money  paid  upon  a  judgment,  which  was  afterwards  reversed. 
It  must  grow  out  of,  or  be  connected  with,  the  case  in  which  the  judgment 
was  vacated.  Thus  the  party  who  has  received  the  money,  may  show  that 
he  is  entitled  to  recover  for  the  cause  alleged,  though  he  mistook  the  appro- 
priate remedy,  or  irregularities  intervened  which  made  it  erroneous.  But 
it  is  not  permissible  to  justify  the  retention,  by  showing  that  the  party  has 
another  cause  of  action,  in  which  he  will  be  entitled  to  recover  as  much 
as  he  received  and  retains.  Such  a  defense  could  not  be  entertained,  con- 
sistently with  principle,  unless  it  embraced  a  demand  that  was  a  proper 
subject  of  set-off.  If  it  was  a  breach  of  covenant  for  quiet  enjoyment,  or 
other  unliquidated  demand,  distinct  from  the  case  in  which  the  money  was 
paid,  it  could  not  be  interposed  as  a  liar  to  the  action.  In  such  case,  to 
make  his  demand  available,  the  defendant  must  become  the  actor  in  a  suit, 
and  have  the  damages  he  has  sustained,  ascertained  by  a  judgment." 

Woodruff's  Cases — 35 


546  COMPULSION    OF    LAW. 

was  testimony  adduced  on  the  part  of  the  respondent  to  the  rule 
that  when  the  payment  on  the  writ  was  made,  Mrs.  Gould  engaged 
to  stop  proceedings  on  the  writ  of  error ;  this,  however,  was  denied 
on  the  part  of  the  petitioner. 

Mr.  Justice  Paxson. — This  was  a  rule  to  show  cause  why  a  writ 
of  restitution  should  not  issue.     *     *     *     * 

The  payment  was  voluntary.  The  money  was  paid  by  Mrs. 
Gould's  attorney  to  the  attorney  of  the  plaintiff  in  the  writ.  It  is 
true  there  was  an  execution  out  and  a  levy  upon  her  real  estate.  A 
sale  upon  this  execution,  however,  would  not  have  passed  the  title. 
It  had  issued  upon  a  judgment  which  this  court,  per  Gordon, 
J.,  has  declared  void.  In  Colwell  v.  Peden,  supra  (3  Watts  327), 
where  the  subject  was  carefully  considered  on  principle  and  author- 
ity, it  was  ruled  that  an  action  cannot  be  maintained  to  recover  back 
money  paid  under  an  impending  distress  not  attended  with  oppres- 
sion or  an  abuse  of  the  remedy,  but  made  in  good  faith  for  rent 
erroneously  supposed  to  be  in  arrear.  And  the  general  principle 
appears  to  be  that  money  voluntarily  paid  upon  a  claim  of  right  can- 
not be  recovered  back,  however  unfounded  such  claim  may  after- 
ward turn  out  to  be.  We  are  not  now  considering  the  line  of  cases 
where  the  process  of  law  has  been  abused  for  the  purpose  of  extor- 
tion, but  where  it  was  used  bona  Ude  to  enforce  what  was  supposed 
to  be  a  right.  The  suit  in  this  case  was  to  recover  for  certain  gro- 
ceries sold  by  McFall,  the  plaintiff,  to  Mrs.  Gould,  a  married 
woman,  for  the  support  of  herself  and  family.  They  were  neces- 
saries, and,  if  actually  sold  as  alleged,  the  plaintiff  would  have  had 
a  right  to  recover,  had  he  made  the  necessary  proof.  He  took  a 
judgment  by  default,  and  this  court  decided  that  such  proof  had  not 
been  made  and  reversed  the  judgment.  We  see,  however,  no  equity 
which  should  move  us  to  award  restitution. 

We  see  no  hardship  in  the  case,  and  if  there  were,  we  prefer  to 
hold  to  well  established  principles.  This  was  a  voluntary  payment 
and  restitution  must  be  refused.  Rule  discharged. 


ii.  Recovery  of  Taxes  Paid. 

PEYSER  V.  MAYOR,  etc.,  OF  NEW  YORK. 

70  N.  Y.  497. — 1877. 

This  action  was  brought  to  recover  back  moneys  alleged  to  have 
been  paid  upon  an  alleged  assessment.  The  complaint  alleged,  in 
substance,  that  in  March,  1869,  defendant  imposed  and  put  on  rec- 
ord what  appeared  to  be,  and  what  defendant  alleged  and  claimed 
was  an  assessment  on  a  lot  owned  by  plaintiff,  in  the  city  of  New 
York,  for  a  local  improvement ;  that  said  assessment  thereby  be- 


RECOVERY    OF   TAXES    PAID.  547 

came  and  was  a  lien  and  encumbrance  on  said  lot,  and  plaintiff  was 
compelled  to  and  did  pay  the  amount  of  said  assessment,  he  sup- 
posing that  said  apparent  assessment  was  legal  and  valid ;  that  in 
October,  1869,  the  Supreme  Court,  on  motion,  set  aside  the  assess- 
ment, and  adjudged  the  same  to  be  void,  and  that  the  comptroller 
of  the  city  refused  to  pay  back  on  demand  the  sum  so  paid.  The  an- 
swer admitted  that  the  assessment  was  duly  imposed  and  paid,  and 
alleged  that  such  payment  was  voluntarily  made.  Upon  the  trial, 
the  petition  upon  which  the  application  was  made  to  vacate  the  as- 
sessment, and  the  order  vacating,  were  given  in  evidence.  This  al- 
leged, as  the  ground  of  illegality,  that  there  was  included  in  the 
amount  for  which  the  assessment  was  made  the  cost  of  works  not 
authorized  by  the  ordinance  under  which  the  assessment  was  laid. 
The  order  recited  that  it  satisfactorily  appeared  tliat  such  irregu- 
larity took  place.  It  also  appeared  that  in  July,  1869,  plaintiff  re- 
ceived official  notice  of  the  confirmation  of  the  assessment  and  a 
demand  of  payment  on  or  before  July  27th ;  that  he  thereupon  paid 
the  same,  under  protest. 

FoLGER,  J. — The  reversal  of  the  assessment  and  the  setting  it 
aside  as  illegal  and  void,  is  conclusive  that  the  money  obtained  upon 
it  by  the  defendant  was  got  from  the  plaintiff'  without  primary  right. 
In  such  case  the  general  rule  is,  that  the  money  ex  aequo  ct  bono 
belongs  to  the  plaintiff,  and  is  held  by  the  defendant  for  his  use. 
The  law  raises  an  obligation  on  the  part  of  him  who  has  received 
the  benefit  of  it  to  make  restitution.  It  is  upon  this  principle,  that 
an  action  is  maintainable  to  recover  back  money  collected  in  satis- 
faction of  an  erroneous  judgment  which  has  been  reversed  after 
payment  made.  Bank  of  U.  S.  v.  Bank  of  Washington,  6  Peters 
8;  Sturges  v.  Allis,  10  Wend.  355;  Clark  v.  Pinney,  6  Cow.  297. 
But  in  actions  to  recover  back  money  paid  in  such  case  another 
principle  comes  in,  and  must  be  observed.  That  is,  that  the  pay- 
ment must  be  involuntary,  which  is  tantamount  to  saying  that  it 
must  be  compulsory  from  coercion  either  in  fact  or  by  law.  The 
reason  of  this  principle  is,  that  a  person  shall  not  be  permitted, 
with  the  knowledge  that  the  demand  made  upon  him  is  illegal  and 
unfounded,  to  make  payment  without  resistance,  where  resistance  is 
lawful  and  possible,  and  afterward  to  choose  his  own  time  to  bring 
an  action  for  restoration,  when,  perchance,  his  adversary  has  lost 
the  evidence  to  sustain  his  side.  I  have  spoken  of  coercion  in  fact 
and  coercion  by  law.  By  the  first  I  mean  that  duress  of  person  or 
goods,  where  present  liberty  of  person  or  immediate  possession  of 
goods  is  so  needful  and  desirable,  as  that  an  action  or  proceeding 
at  law  to  recover  them  will  not  at  all  answer  the  pressing  purpose. 
Duress  of  person  is  exemplified  in  Forshay  v.  Ferguson  (5  Hill 
154)  ;  Eadie  v.  Slimmon  (26  N.  Y.  9).  The  cases  of  Maxwell  v. 
Newbold  (18  How.  (U.  S.)  511),  and  Harmony  v.  Binofham  (12 
N.  Y.  99) ,  illustrate  what  is  duress  of  goods.  It  may  be  well  to  sav, 
that  there  can  be  no  pretense  in  this  case  of  a  coercion  in  fact.  There 
was  no  taking  or  threat  of  taking  goods.     The  oral  protest  was  of 


548  COMPULSION    OF    LAW. 

no  import,  save  to  show  that  there  was  not  an  assent  to  the  pro- 
ceedings. Flower  v.  Lance,  59  N.  Y.  603,  610.  Coercion  by  law 
is  where  a  court,  having  jurisdiction  of  the  person  and  of  the  sub- 
ject matter,  has  rendered  a  judgment  which  is  collectible  in  due 
course.  There  the  party  cast  in  judgment  may  not  resist  the  exe- 
cution of  it.  His  only  remedy  is  to  obtain  a  reversal,  if  he  may,  for 
error  in  it.  As  he  cannot  resist  the  execution  of  it,  when  execution 
is  attempted  he  may  as  well  pay  the  amount  at  one  time  as  another 
and  save  the  expense  of  delay.  It  may  be  well  to  say  that  if  the 
judgment  is  not  afterward  reversed,  but  is  invalid  for  any  collateral 
reason,  or  the  process  issued  upon  it  is  illegal,  payment  with  knowl- 
edge of  the  fact  would  perhaps  be  voluntary,  which  seems  a  sound 
distinction  taken  by  Emott,  J,,  in  Lott  v,  Swezey,  (29  Barb.  87- 
92).  To  such  case  of  coercion  by  law,  as  is  above  given,  are  to  be 
added  those  quasi  adjudications  of  inferior  tribunals,  such  as  as- 
sessors of  taxes  or  assessments ;  where  their  proceedings  are  regular 
on  their  face,  and  on  presentation  make  out  a  right  to  have  and  de- 
mand the  amount  levied,  and  to  collect  it  in  due  course  of  law  by 
sale  of  goods  or  municipal  lease  of  real  estate.  Unless  void  on  their 
face,  they  have  the  force  of  a  judgment ;  the  party  is  legally  bound 
to  pay,  and  has  no  lawful  mode  of  resisting.  The  only  remedy  is  a 
reversal  of  the  adjudications.  Until  reversed  they  give  the  col- 
lector of  the  tax  the  right  to  take  and  sell  goods,  and  the  assessment 
remains  a  prima  facie  valid  lien  upon  real  estate.  Bank  of  Com- 
monwealth V.  The  Mayor,  43  N.  Y.  184-8. 

There  is  no  clashing  here  with  the  case  of  The  N.  Y.  &  H.  R.  R. 
Co.  V.  Marsh  (12  N.  Y.  308).  In  that  case  there  was  wanting  an- 
other element  which  is  assumed  to  exist  in  the  cases  above  supposed. 
There  had  been  no  reversal  of  the  assessment  of  tax  in  that  case. 
There  had  been  no  alteration  of  the  rights  and  positions  of  the  parties, 
and  the  action  was  brought  upon  the  same  state  of  facts  as  existed 
when  the  payment  was  made.  Besides,  in  that  case,  the  collector 
did  not  assert  a  right  to  seize  property  then  and  there.  There  was 
no  taking,  nor  imminent  danger  thereof.  He  was  out  of  his  baili- 
wick, which  fact  was  as  well  known  to  the  plaintiff  as  to  him,  and 
at  the  time  payment  was  made,  as  when  action  as  commenced.  Nor 
is  it  the  same  as  Fleetwood  v.  City  of  New  York  (2  Sandf.  475). 
There  it  was  apparent  upon  the  face  of  the  proceedings  that  there 
was  no  foundation  for  them,  no  ordinance  having  been  adopted  for 
laying  the  assessment.  The  owner  of  the  land  assessed  could  al- 
ways have  relied  upon  this  as  a  defense  to  an  action  to  dispossess 
him.  The  lessee  of  the  city  would  have  needed  to  show  and  would 
have  failed  to  show  an  ordinance  for  the  assessment.  The  assessments 
were  not  a  cloud  upon  his  title,  warranting  an  action  to  remove  an  ap- 
parent lien.  Marsh  v.  City  of  Brooklyn,  59  N.  Y.  280 ;  Washburn  v. 
Burnham,  63  id.  132.  To  warrant  an  action  to  recover  back  money 
paid  by  coercion  of  law  upon  a  judgment,  or  tax  levied,  or  assessment 
laid,  it  must  appear  that  the  judgment  of  proceedings  were  prima 
facie  regular,  so  as  not,  themselves,  to  furnish  evidence  of  their  own 


RECOVERY    OF   TAXES    PAID.  549 

invalidity ;  and  it  must  also  appear  that  the  rig-hts  and  positions  of  the 
parties  have  been  changed  since  the  payment  was  made,  as  by  a  re- 
versal for  error  or  a  setting-  aside  for  irregularity  or  illegality.  By  the 
setting  aside  of  the  assessment,  in  the  case  in  hand,  the  last  of  the 
requirements  is  made  out.  We  must  look  into  the  case  to  see  if  the 
first  is.  The  complaint  alleges  that  the  defendants  imposed  and 
put  upon  record  what  appeared  to  be,  and  what  defendants  claimed 
was  an  assessment  on  the  plaintiff's  land,  and  that  the  same  became, 
and  was  an  apparent  lien  and  incumbrance  thereon.  The  answer  ad- 
mits that  the  assessment  was  duly  imposed  pursuant  to  law.  The  pe- 
tition for  the  vacating  of  the  assessment,  which  was  given  in  evidence, 
alleges  as  the  ground  of  illegality  that  there  was  included  in  the 
amount  the  cost  of  works  not  authorized  by  the  ordinance,  in  pur- 
suance of  which  the  assessment  w^as  laid.  The  order  of  the  court 
setting-  aside  the  assessment  recites  that  it  satisfactorily  appears 
that  such  irregularity  took  place.  This  is  sufficient  to  show  that  the 
illegality  of  the  assessment  consisted  in  something  aliunde  the  rec- 
ord which  would  be  produced  by  a  municipal  lessee  to  establish  his 
right  to  possession  of  the  lot  assessed.  It  was  in  a  fact  of  which 
the  plaintiff  would  have  needed  to  make  proof  on  his  part  to  rebut 
the  prima  facie  case  made  against  him.  It  thus  appears  that  the 
plaintiff  fulfilled  the  other  requirement  of  a  payment  involuntarily 
made. 

It  follows  that  the  complaint  was  erroneously  dismissed  at  the 
trial,  and  the  judgment  should  be  reversed. 

All  concur.  Judgment  reversed.^ 

^  In  Redmond  et  al.  v.  Mayor,  etc.,  125  N.  Y.  632  (1891),  the  court  says  (p. 
636)  :  "So,  where  an  assessment  is  paid  which,  upon  its  face,  carries  tlie  notice 
of  its  illegality  and  consequent  invalidity,  and  no  duress  is  resorted  to  for 
its  collection  by  the  authorities,  its  payment  by  the  property  ov/ner  would  be 
voluntary  in  the  eye  of  the  law  and  its  restoration  denied.  Fleetwood  v. 
City  of  New  York,  2  Sandf.  475 ;  Peyser  v.  Mayor,  70  N.  Y.  496 ;  Phelps  v. 
Mayor,  112  Id.  216.  But  the  principle  upon  which  such  payments  are 
deemed  voluntary  extends  to  cases  Avhere,  without  the  impress  of  illegality 
upon  their  face,  assessments  are  paid  with  knowledge,  actual  or  constructive, 
of  the  facts  which  make  them  invalid  claims  of  the  municipality.  That 
should  be  quite  obvious ;  for  the  principle  underlying  the  right  to  compel  a 
restoration  of  the  moneys  paid  is  that  the  debtor  was  ignorant  of  the  exist- 
ence of  the  facts  which  would  have  precluded  his  creditor  from  maintaining 
his  demand  at  law,  or  enforcing  his  lien  against  his  defense.  The  court 
should  deny  a  claim  for  the  repayment  of  moneys  in  such  cases,  unless  it 
appears  in  proof  that  the  parties  charged  with  their  payment  were  ignorant 
of  the  facts  constituting  the  illegality  of  the  assessments,  and  paid  them, 
when  demanded,  and  under  circumstances  exhibiting  such  good  faith  in  the 
matter  as  to  make  it  appear  that  they  acted  under  a  moral  coercion,  or  else 
it  should  be  evident  that  the  payment  was  involuntary  and  compelled  by 
some  duress." 


i 


550  COMPULSION    OF    LAW.  <J 

^TRIMMER  V.  CITY  OF  ROCHESTER.         ,  ^ 

130  N.  Y.  401. — 1892.  ^ 

This  action  was  brought  to  recover  back  moneys  paid  upon  al- 
leged illegal  assessments  for  street  improvement.  May  30,  1865, 
the  common  council  of  the  city  of  Rochester,  pursuant  to  chapter 
143  of  the  laws  of  1861,  the  city  charter,  confirmed  an  assess- 
ment of  $30,830,  for  curbing  and  paving  Oak  street,  between  Allen 
and  Lisle  streets,  the  sum  being  assessed  upon  property  benefited 
by  the  improvement.  One-third  of  the  assessment  became  due 
August  30,  1865,  one-third  May  30,  1866,  and  one-third  j\Iay  30, 
1867.  The  last  two  installments  bore  interest  at  the  rate  of  7  per 
cent,  from  May  30,  1865.  Among  other  property  assessed  was  a 
lot  belonging  to  Thomas  Brady,  upon  which  there  was  levied  $492, 
one-third  of  which,  $164,  was  payable  August  30,  1865,  one-third 
May  30,  1866,  with  interest  from  May  30,  1865,  and  one-third  May 
30,  1867,  with  interest  from  May  30,  1865.  August  30,  1865,  Brady 
paid  $164,  and  April  19,  1866,  $174.15,  the  amount  of  the  second 
installment  with  interest.  Prior  to  Febraury  21,  1888,  Brady's  right 
to  recover  the  sums  so  paid  by  him  was  assigned  to  the  plaintiff, 
who,  on  the  date  mentioned,  demanded  payment  of  the  defendant 
of  the  sums,  and  February  23,  1888,  brought  this  action  to  recover 
the  amounts  paid  with  interest  from  the  dates  of  payment.  July  18, 
1867,  William  E.  Hassen  and  others,  Thomas  Brady  not  being  a 
party,  brought  an  action  to  set  aside  the  assessment  against  their 
properties  upon  the  ground  that  certain  realty  benefited  by  the  im- 
provement had  been  omitted  from  the  roll.  September  9,  1882,  a 
judgment  was  recovered  in  the  action,  adjudging  that  the  assess- 
ments against  the  realty  of  the  plaintiffs  in  that  action  were  illegal 
and  void  by  reason  of  such  omission,  and  the  city  and  its  officials 
were  restrained  from  collecting  the  assessments  from  the  plain- 
tiffs or  out  of  their  property,  6  Lans.  185;  65  N.  Y.  516;  67  id. 
528.  Further  facts  are  stated  in  the  opinion. 

FoLLETT,  Ch.  J. — The  taxing  officers  of  the  defendant  omitted 
from  the  assessment  roll  realty  benefited  by  the  improvement,  and 
for  this  error  assessments  against  the  taxpayers  who  brought  actions 
to  set  them  aside  were  adjudged  to  be  illegal.  Hassen  v.  City  of 
Rochester,  65  N.  Y.  516 ;  67  id.  528. 

There  is  a  broad  distinction  between  an  assessment  which  is  il- 
legal by  reason  of  the  existence  of  some  fact  outside  the  record  and 
one  void  on  the  face  of  the  record,  for  lack  of  jurisdiction  of  the 
person  or  property,  or  by  reason  of  the  unconstitutionality  of  the 
statute  under  which  the  assessment  is  made.  In  the  latter  case,  if 
money  is  compulsivclv  obtained  it  may  be  recovered  from  the  mu- 
nicipality in  an  action  at  law  brought  by  the  wronged  taxpayer. 
But  in  case  money  is  collected  under  an  illegal  assessment,  it  can- 
not be  recovered  until  the  assessment  is  set  aside.    Horn  v.  Town 


RECOVERY   OF   TAXES    PAID.  55 1 

of  New  Lots,  83  N.  Y.  loi ;  Purssell  v.  Mayor,  etc.,  85  id.  330 ; 
Strusbtirgh  v.  Mayor,  etc.,  87  id.  452 ;  Briiecher  v.  Village  Port 
Chester,  loi  id.  240;  Jex  v.  Mayor,  etc.,  103  id.  536.  The  rights  of 
persons  from  whom  money  is  collected  under  such  assessments  are 
like  those  of  persons  from  whom  money  is  collected  under  judgments 
void;  for  example,  for  lack  of  jurisdiction,  and  those  which  are  re- 
versible for  error.  Money  collected  under  void  judgments  may  be  re- 
covered without  first  setting  them  aside,  but  that  collected  under 
judgments  erroneously  obtained  cannot  be  until  they  are  reversed. 

It  is  agreed  that  the  assessment  against  the  realty  of  the  assignor 
of  the  plaintifif,  and  on  account  of  which  the  money  sought  to  be 
recovered  in  this  action  was  paid,  has  not  been  set  aside,  nor  have 
any  proceeding  or  actions  been  instituted  for  such  purpose.  The 
judgment  in  Hassen's  case  did  not  set  aside  all  of  the  assessments, 
but  only  those  against  the  property  of  the  plaintiffs  in  that  action, 
and  the  assessment  against  realty  of  the  assignor  of  the  plaintiff 
was  not  affected  or  invalidated  by  that  judgment,  and  until  it  is  set 
aside  no  action  can  be  maintained  to  recover  the  sums  paid  under  it. 
Matter  of  Delancey,  52  N.  Y.  80;  Wilkes  v.  Mayor,  79  id.  621; 
Purssell  V.  Mayor,  etc.,  85  id.  330 ;  Chase  v.  Chase,  95  id.  373. 

The  foregoing  cases  arose  under  special  statutes  regulating  the 
remedies  of  taxpayers  in  cases  of  illegal  assessments  in  the  citv  of 
New  York  (C.  338,  L.  1858;  C.  312,  L.  1874;  C.  550,  L.  1880). 
But  Moore  v.  City  of  Albany  (98  N.  Y.  396),  did  not  arise  under 
a  statute  affording  aggrieved  taxpayers  special  remedies,  and  it 
was  there  held  that  in  case  all  the  assessments  on  the  roll  were  il- 
legal for  a  common  cause,  not  appearing  on  the  face  of  the  roll,  or 
on  the  record  on  which  it  rested,  a  judgment  vacating  an  assessment 
in  favor  of  one  taxpayer  did  not  vacate  the  assessments  against  the 
others.  Reid  v.  Bd.  Super.  Albany  Co.,  128  N.  Y.  364. 

The  result  is  that  the  plaintiff  failed  to  establish  a  cause  of  action 
for  the  recovery  of  the  money  paid,  and  the  complaint  was  right- 
fully dismissed.  These  views  render  it  unnecessary  to  consider  the 
question  of  the  effect  of  the  statute  of  limitations. 

The  judgment  should  be  affirmed  with  costs. 

All  concur.  Judgment  affirmed. 


MAYOR  AND  ALDERMEN  OF  JERSEY  CITY  v.  RIKER. 
38  N.  J.  L.  225.— 1876. 

On  rule  to  show  cause. 

The  plaintiff  was  assessed  for  the  benefit  to  his  property  in  Jer- 
sey City,  by  the  construction  of  a  sewer,  in  the  sum  of  $810.57.  This 
assessment  was  paid  by  him,  and  was  subsequently  set  aside  on  cer- 
tiorari in  the  supreme  court.  A  reassessment  of  the  expenses  of 
this  sewer  was  then  made  by  the  commissioners  appointed  under 


552  COMPULSION    OF   LAW. 

the  act  of  1873;  P-  442>  such  reassessment  amounting  to  the  sum  of 
?333-73-  This  suit  was  brought  to  recover  the  difference  between 
the  sum  paid  and  the  amount  thus  reassessed.  A  verdict  was  taken 
for  the  plaintiff,  and  this  motion  was  to  set  it  aside. 

Beasley,  Chief  Justice. — The  principal  objection  to  a  recovery  in 
this  case  is,  that  the  plaintiff,  having  voluntarily  paid  the  tax  as- 
sessed upon  his  property,  cannot  maintain  a  suit  for  reimbursement. 
The  general  doctrine  thus  invoked  is  indisputable.  There  are  a 
multitude  of  cases  to  the  purpose,  that  when  money  is  demanded  as 
a  legal  right,  and  it  is  paid  without  compulsion,  and  with  a  full 
comprehension  of  the  facts,  the  money  so  paid  cannot  be  reclaimed 
by  a  suit  at  law.  The  reason  of  this  rule  is,  that  the  party  paying 
had  an  opportiuiity  to  dispute  the  claim,  and  that  having  waived 
it  at  his  own  volition,  it  is  impolitic  to  permit  him  to  overhaul  the 
transaction  by  an  aggressive  action.  The  doctrine  is  intended  to  be 
repressive  of  litigation,  and  is  promotive  of  the  policy  expressed  in 
the  maxim,  ''Interest  repnblicae  lit  sit  finis  litinm."  The  principle 
is  forcibly  stated  by  ]\Ir.  Justice  Gibbs  in  the  well-known  case  of 
Brisbane  v.  Dacres,  5  Taunton  152.  His  language  is :  "We  must 
take  this  payment  to  have  been  under  demand  of  right,  and  I  think 
that  where  a  man  demands  money  of  another,  as  a  matter  of  right, 
and  that  other,  with  a  full  knowledge  of  the  facts  upon  which  the 
demand  is  founded,  has  paid  the  sum,  he  never  can  recover  back  the 
sum  he  has  so  voluntarily  paid."  Many  decisions  of  like  import  can 
be  found  by  referring  to  the  notes  in  illustration  of  the  judgment 
in  the  case  of  Marriot  v.  Hampton,  2  Smith's  Lead.  Cas.  400. 

Nor  are  adjudications  v/anting  which  have  enforced  this  rule, 
in  its  full  rigor,  in  cases  of  payments  of  taxes  which  had  been  ir- 
regularly or  illegally  assessed.  Chief  Justice  Shaw,  in  the  case  of 
Lincoln  v.  Worcester,  8  Cush.  55,  declares  that  these  are  the  three 
following  requisites  to  a  right  to  reclaim  the  money  paid  by  force 
of  illegal  taxation :  First,  the  authority  to  levy  the  tax  must  be 
wholly  wanting ;  second,  the  money  sued  for  must  have  been  re- 
ceived by  the  corporation  for  its  own  use ;  third,  the  payment  must 
have  been  made  upon  compulsion,  and  not  voluntarily.  Judge  Dil- 
lon, in  his  Treatise  on  Municipal  Corporations,  says  that  unless 
these  conditions  are  all  present,  payment  under  protest  will  not 
give  a  right  of  recovery.  (Vol.  2,  p.  857.)  This  learned  author 
cites  in  his  notes,  in  corroboration  of  his  views,  a  lengthened  line 
of  concurring  decisions. 

But  the  doctrine  thus  established  is  not  applicable  to  the  present 
case.  The  plaintiff  does  not  claim  a  right  of  action  simply  on  the 
ground  that  he  has  paid  an  illegal  tax.  If  such  were  his  attitude  the 
adjudications  cited  would  defeat  a  recovery.  But  the  suit  does  not 
rest  on  that  basis.  In  this  instance  the  authority  to  levy  the  tax  was 
not  wholly  wanting,  and  the  payment,  in  the  legal  sense,  was  vol- 
untary ;  and  under  cither  of  these  conditions  the  law  refuses  to  raise 
an  imi)lied  promise  to  refund  the  money  paid.  Had  this  suit  been 
brought  upon  the  payment  of  the  tax,  and  before  any  change  in  the 


RECOVERY    OF   TAXES    PAID. 


^ 

ii^_ 


situation  had  occurred,  the  case  would  have  been  the  orduiary  one 
presented  in  the  reports  and  ruled  by  the  decisions.  But  that  is  not 
so ;  there  is  a  new  element  here,  and  that  is,  the  tax  which  was  paid 
has  been  set  aside.  The  consequence  is  the  payment  has  nothing, 
either  in  theory  or  in  fact,  to  rest  upon.  The  party  is  debarred  from 
his  action  after  a  voluntary  payment,  because,  of  his  own  motion, 
he  abandons  his  defense  to  the  claim ;  this  the  present  plaintiff  did 
not  do ;  on  the  contrary,  he  pushed  his  defense  to  a  successful  result. 
The  payment  of  the  tax  in  this  instance  has  not  added,  in  the  least 
degree,  to  the  litigation,  and  public  policy,  therefore,  does  not 
require  a  frustration  of  this  procedure.  The  assessment  being  va- 
cated by  direct  judicial  action,  the  law  raises  an  assumption  to  re- 
fund the  money  which  can  no  longer  be  honestly  retained.  An  as- 
sessment in  this  respect  is  analogous  to  a  judgment,  and  when  a 
judgment  is  reversed  the  defendant  is  restored,  as  nearly  as  practi- 
cable, to  his  original  condition,  and  for  this  purpose  a  writ  of  resti- 
tution goes.  In  the  case  of  Close  v.  Stuart,  4  Wend.  98,  it  is  said : 
"The  right  of  the  plaintiff  to  the  costs  in  error,  and  to  a  return  of 
the  money  becomes  perfect  by  the  reversal  of  the  judgment,"  and 
it  was  consistently  held  that  the  money  so  due  would  form  the  sub- 
ject of  a  set-off.  In  this  court,  upon  reversals  of  judgments,  restitu- 
tion has  been  repeatedly  ordered  without  regard  to  the  fact  whether 
such  judgments  have  been  voluntarily  paid  or  not.  Randolph  v. 
Bayles,  Penn.  52 ;  Anonymous,  lb.  900 ;  McChesney  v.  Rogers,  3 
Halst.  335  ;  Scott  v.  Conover,  5  Halst.  61.  The  principle  of  this 
course  of  law  is,  that  after  the  judgment  is  annulled  the  money  paid 
upon  it  is  due  to  the  defendant  ex  aequo  ct  bono,  and  that  there  is 
no  paramount  inconvenience  in  allowing  its  reclamation.  Certainly 
a  tax  assessment  cannot  be  put  upon  higher  ground ;  upon  its  vaca- 
tion the  money  paid  cannot,  in  good  conscience,  be  retained  by  the 
public.  In  the  present  instance  the  defendant  has  not  a  particle  of 
right  to  the  money  in  question ;  it  is  due  to  the  plaintiff  according 
to  the  principles  of  common  honesty,  and  it  is,  therefore,  not  to  be 
regretted  that  the  attempt  to  w-ithhold  it  by  the  sumniuni  jus  has 
failed. 

The   other  questions   raised   upon  the  argument   have   been   ex- 
amined, but  they  do  not  appear  to  me  to  be  of  any  weight. 

The  rule  should  be  discharged. 


I  LAMBORN  V.  COUNTY  COMMISSIONERS. 

97  U.  S.  181.— 1877. 


r  V  Ir^ 


Mr.  Justice  Bradley. — Lamborn,  the  plaintiff  in  error  in  this 
case,  is  the  trustee  and  representative  of  the  National  Land  Com- 
pany. This  company  had  contracted  with  the  Kansas  Pacific  Rail- 
way Company  for  the  purchase  of  a  large  quantity  of  the  lands  in 


554  COMPULSION    OF    LAW. 

Kansas,  to  which  the  latter  company  was  entitled  under  the  con- 
gressional grant  made  to  it,  under  the  name  of  the  Leavenworth, 
Pawnee  and  Western  Railroad  Company,  and  the  Union  Pacific 
Railroad  Company,  Eastern  Division,  by  the  acts  of  July  i,  1862, 
and  July  2,  1864.  The  contract  required  the  land  company  to  pay 
all  such  taxes  and  assessments  as  might  be  lawfully  imposed  on  the 
lands.  And  it  provided  that  the  railway  company  should,  at  the  re- 
quest of  the  land  company,  convey  by  deed  of  general  warranty  any 
of  the  lands  purchased,  whenever  the  purchase-money  and  interest 
and  the  necessary  stamps  should  be  furnished  by  the  latter.  The 
land  company,  after  acquiring  this  contract,  had  contracted  to  sell 
large  portions  of  the  lands  to  third  parties,  taking  from  them  agree- 
ments to  pay  all  taxes  and  assessments  that  might  be  imposed  upon 
the  lands  sold  to  them  respectively.  The  lands  in  Dickinson  county 
were  assessed  by  the  defendants  for  taxes  for  the  years  1870,  1871 
and  1872,  successively,  when,  as  yet,  they  were  not  taxable,  no  pat- 
ent having  been  issued  therefor,  and  the  costs  of  surveying,  select- 
ing, and  conveying  the  same  not  having  been  paid.  These  taxes, 
therefore,  as  decided  by  us  in  the  case  of  Railway  Company  v.  Pres- 
cott,  16  Wall.  603,  were  not  legal.  Nevertheless,  the  Supreme  Court 
of  Kansas,  in  that  case,  had  held  such  taxes  legal ;  and  the  taxes  for 
the  year  1870,  now  in  question  not  having  been  paid,  the  treasurer 
of  Dickinson  county  proceeded  to  advertise  and  sell  the  lands  there- 
for in  May,  187 1,  and,  no  person  bidding  the  requisite  amount,  the 
lands  were  bid  in  for  the  county.  The  assessments  for  1871  and 
1872  were  made  against  the  lands  whilst  they  were  in  this  position. 

By  the  laws  of  Kansas,  if  lands  sold  for  taxes  are  bid  in  for  the 
county,  the  county  treasurer  is  authorized  to  issue  a  tax  certificate 
to  any  person  who  shall  pay  into  the  county  treasury  an  amount 
equal  to  the  cost  of  redemption  at  the  time  of  payment.  Gen.  Stats. 
of  Kansas,  c.  107,  §  91.  And  if  any  lands  sold  for  taxes  are  not 
redeemed  within  three  years  from  the  day  of  sale,  the  clerk  of  the 
county  may  execute  a  deed  to  the  purchaser,  his  heirs  or  assigns, 
on  the  presentation  to  him  of  the  certificate  of  sale.  Sec.  112.  It  is 
further  provided,  that  if  the  county  treasurer  shall  discover,  before 
the  sale  of  any  lands  for  taxes,  that  on  account  of  any  irregular  as- 
sessment, or  from  any  other  error,  such  lands  ought  not  to  be  sold, 
he  shall  not  offer  such  lands  for  sale ;  and  if,  after  any  certificate 
shall  have  been  granted  upon  such  sale,  the  county  clerk  shall  dis- 
cover that,  for  any  error  or  irregularity,  such  land  ought  not  to  be 
conveyed,  he  shall  not  convey  the  same ;  and  the  county  treasurer 
shall,  on  the  return  of  the  tax  certificate,  refund  the  amount  paid 
therefor  on  such  sale,  and  all  subsequent  taxes  and  charges  paid 
thereon  by  the  purchaser  or  his  assigns,  out  of  the  county  treasury, 
with  interest  on  the  whole  amount  at  the  rate  of  10  per  cent,  per 
annum.     Sec.  120. 

In  1872  the  plaintiff  in  error  paid  into  the  county  treasury  the 
sums  due  for  taxes,  interest,  etc.,  on  the  said  lands  in  Dickinson 
county,  which  had  been  sold  for  taxes  as  aforesaid,  and  received 


RECOVERY    OF    TAXES    PAID.  555 

tax  certificates  therefor,  without  making  any  protest,  not  being 
aware  at  that  time,  as  he  alleges,  that  the  lands  were  exempt  from 
taxation,  but  supposing  that  the  taxes  were  legal  and  valid.  On 
the  second  day  of  January,  1874,  after  the  decision  of  this  court  in 
Railway  Company  v.  Prescott,  16  Wall.  603,  he  offered  to  return 
the  tax  certificates  to  the  county  treasurer,  and  demanded  a  return 
of  the  money  paid  by  him  into  the  county  treasury,  with  interest, 
which  was  refused  by  the  treasurer ;  and  thereupon  this  suit,  against 
the  board  of  county  commissioners  of  that  county,  was  brought  to 
recover  the  same.     *     *     *     * 

In  the  present  case  there  is  no  dispute  that  all  the  facts  and  cir- 
cumstances of  the  case  bearing  on  the  question  of  the  legality  of  tlie 
tax  were  fully  known  to  the  plaintiff.  He  professedly  relied  on  the 
law,  as  declared  by  the  Supreme  Court  of  Kansas,  and  supposed  that 
the  tax  was  legal  and  valid. 

The  only  other  ground  left,  therefore,  on  which  a  right  to  recover 
back  the  money  paid  can  be  at  all  based,  is,  that  the  payment  was 
not  voluntary,  but  by  compulsion  or  duress.  It  is  contended  that 
the  plaintiff  was  obliged  to  pay  the  taxes  in  order  to  remove  the 
cloud  from  the  title  which  had  been  raised  by  the  tax  sale,  and  to 
prevent  a  deed  from  being  given  to  some  third  party  after  the  ex- 
piration of  the  three  years  allowed  for  redemption. 

It  is  settled  by  many  authorities  that  money  paid  by  a  person 
to  prevent  an  /illegal  seizure  of  his  person  or  property  by  an 
officer  claiming  authority  to  seize  the  same,  or  to  liberate  his  person 
or  property  from  illegal  detention  by  such  officer,  may  be  recovered 
back  in  an  action  for  money  had  and  received,  on  the  ground  that 
the  payment  was  compulsory,  or  by  duress  or  extortion.  Under 
this  rule,  illegal  taxes  or  other  public  exactions,  paid  to  prevent  such 
seizure  or  remove  such  detention,  may  be  recovered  back,  unless 
prohibited  by  some  statutory  regulation  to  the  contrary.  Elliott  v. 
Swartwout,  10  Pet.  137 ;  Ripley  v.  Gelston,  9  Johns.  201  ;  Clinton 
V.  Strong,  9  Johns.  369 ;  and  cases  cited  in  2  Smith's  Lead.  Cas. 
(CAi  ed.)  468;  Cooley  Taxation.  568. 

But  it  has  been  questioned  whether  a  sale  or  threatened  sale  of 
land  for  an  illegal  tax  is  within  this  rule,  there  being  no  seizure  of 
the  property,  and  nothing  supervening  upon  the  sale  except  a  cloud 
on  the  title.  This  view  has  been  adopted  in  Kansas.  In  Phillips 
V.  Jefferson  County,  5  Kan.  412,  certain  Indian  lands,  not  legally 
taxable,  were,  nevertheless,  assessed  and  sold  for  taxes,  and  a  cer- 
tificate issued  to  the  purchaser.  Phillips,  having  acquired  title  to 
the  land,  paid  the  amount  of  said  taxes,  at  the  same  time  denying 
their  legality,  and  saying  that  he  paid  the  money  to  prevent  tax 
deeds  from  issuing  on  the  certificates.  The  court  hold  that  the  pay- 
ment was  purely  voluntary,  and  add :  "The  money  was  not  paid  on 
compulsion  or  extorted  as  a  condition.  A  tax  deed  had  been  due 
for  nearly  two  years.  Had  the  plaintiff  desired  to  litigate  the  ques- 
tion, he  could  have  done  so  without  paying  the  money :  even  had  a 
deed  been  made  out  on  the  tax  certificate,  it  would  have  been  set 


556  COMPULSION    OF    LAW. 

aside  by  appropriate  proceedings.  There  was  no  legal  ground  for 
apprehending  any  danger  on  the  part  of  the  plaintiff.  He  could 
have  litigated  the  case  as  well  before  as  after  payment.  Neither  his 
person  nor  property  was  menaced  by  legal  process.  Regarding, 
then,  the  payment  as  purely  voluntary,  it  is  as  certain  as  any  prin- 
ciple of  law  can  be  that  it  could  not  be  recovered  back." 

It  seems  to  us  that  this  case  is  precisely  parallel  with  the  one  be- 
fore us.  We  are  unable  to  perceive  any  distinction  between  them. 
And  as  it  is  the  law  of  Kansas  which  we  are  called  upon  to  admin- 
ister, the  settled  decisions  of  its  supreme  court,  upon  the  very  mat- 
ter, are  entitled  to  the  highest  respect.  We  are  not  aware  of  any 
decision  which  tends  to  shake  the  authority  of  Phillips  v.  Jefferson 
County.  On  the  contrary,  the  same  views  have  been  subsequently 
reiterated.  In  Wabaunsee  County  v.  Walker,  8  Kan.  431,  a  case 
precisely  like  it,  with  the  exception  that  when  the  taxes  were  paid 
to  the  county  collector  to  redeem  the  tax  certificates,  under  a  mis- 
taken view  of  the  law,  he  charged  twice  as  much  interest  as  he  was 
entitled  to,  the  party  paid  under  protest.  Yet  it  was  held  that  he 
could  not  recover  back  even  the  illegal  interest.  The  court  relied 
on  the  previous  decision  in  Phillips  v.  Jefferson  County,  and,  after 
examining  various  other  authorities,  summed  up  the  matter  as  fol- 
lows :  "A  correct  statement  of  the  rule  governing  such  cases  as 
this  would  probably  be  as  follows :  Where  a  party  pays  an  illegal 
demand  with  a  full  knowledge,  of  all  the  facts  which  render  such 
demand  illegal,  without  an  immediate  and  urgent  necessity  therefor, 
or  unless  to  release  his  person  or  property  from  detention,  or  to 
prevent  an  immediate  seizure  of  his  person  or  property,  such  pay- 
ment must  be  deemed  to  be  voluntary  and  cannot  be  recovered  back. 
And  the  fact  that  the  party,  at  the  time  of  making  the  payment, 
files  a  written  protest  does  not  make  the  payment  involuntary." 

The  question  was  again  discussed  in  the  recent  case  of  the  Kansas 
Pacific  Railway  Co.  v.  Commissioners  of  Wyandotte  County,  16 
Kan.  587 ;  and  although,  in  that  case,  a  personal  tax  paid  by  the  rail- 
road company  under  protest  was  recovered  back,  such  recovery  was 
allowed  on  the  ground  that,  if  the  tax  was  not  paid,  it  would  be  tlte 
immediate  duty  of  the  county  treasurer  to  issue  a  warrant  to  the 
sheriff  to  levy  upon  and  sell  the  personal  property  of  the  company 
therefor.  But  the  principles  of  the  former  cases  were  recognized 
and  affirmed. 

It  has  undoubtedly  been  held  in  other  states  (though  perhaps  not 
directly  adjudged)  that  a  payment  of  illegal  taxes  on  lands,  to  avoid 
or  remove  a  cloud  upon  the  title  arising  from  a  tax  sale,  is  a  com- 
pulsory payment.  The  case  of  Stephan  v.  Daniels  et  al.,  27  Ohio 
St.  527,  is  of  this  character ;  though  in  that  case  the  plaintiff  relied 
on  the  provisions  of  a  local  statute ;  and  besides  this,  a  legal  tax 
was  combined  with  an  illegal  assessment,  and  perhaps  a  sale  would 
have  conferred  a  valid  title  upon  the  purchaser.  Where  such  would 
be  the  effect  of  a  tax  sale,  we  cannot  doubt  that  a  payment  of  the 
tax,  made  to  prevent  it,  should  be  regarded  as  compulsory  and  not 


RECOVERY   OF   TAXES    PAID,  557 

voluntary.  The  threatened  divestiture  of  a  man's  title  to  land  is 
certainly  as  stringent  a  duress  as  the  threatened  seizure  of  his  goods ; 
and  if  imminent,  and  he  has  no  other  adequate  remedy  to  prevent 
it,  justice  requires  that  he  should  be  permitted  to  pay  the  tax,  and 
test  its  legality  by  an  action  to  recover  back  the  money.  But  as, 
in  general,  an  illegal  tax  cannot  furnish  the  basis  of  a  legal  sale, 
the  case  supposed  cannot  often  arise.  If  the  legality  of  the  tax  is 
merely  doubtful,  and  the  validity  of  the  sale  would  depend  on  its 
legality,  according  to  the  law  of  Kansas,  the  party,  if  he  chooses 
to  waive  the  other  remedies  given  him  by  law  to  test  the  validity 
of  the  tax,  must  take  his  risk  either  voluntarily  to  pay  the  tax, 
and  thus  avoid  the  question,  or  to  let  his  land  be  sold,  at  the  hazard 
of  losing  it  if  the  tax  should  be  sustained.  Having  a  knowledge 
of  all  the  facts,  it  is  held  that  he  must  be  presumed  to  know  the 
law ;  and,  in  the  absence  of  any  fraud  or  better  knowledge  on  the 
part  of  the  officer  receiving  payment,  he  cannot  recover  back  money 
paid  under  such  mistake.     *     *     *     *  Judgment  affirmed. 


^  FIRST  NATIONAL  BANK  OF  AMERICUS  v.  MAYOR,  etc., 

OF  AMERICUS. 

68  Ga.   119.— i88i. 

Speer,  Justice. — The  First  National  Bank  brought  suit  against 
the  defendants,  for  the  sum  of  $1,639,  besides  interest,  alleging 
that  petitioner  was  organized  as  a  national  bank  association,  and 
under  the  laws  of  the  United  States,  was  empowered  to  carry  on  a 
general  banking  business  in  the  city  of  Americus ;  that,  from  the 
year  1872  to  the  present,  by  virtue  of  the  authority  aforesaid,  peti- 
tioner has  been  engaged  in  the  banking  business  in  said  city ;  that 
the  petitioner  is  expressly  exempted  from  the  payment  of  any  tax 
upon  its  business  of  banking,  or  upon  its  capital  stock,  except  such 
tax  as  it  is  required  to  pay  the  government  of  the  United  States, 
as  provided  by  section  5214  of  the  Revised  Code  of  the  United 
States.  Further,  petitioner  alleges  that,  notwithstanding  this  ex- 
emption, the  defendant  wrongfully,  and  without  any  authority  of 
law,  has  demanded  of  petitioner  the  sum  of  one  hundred  dollars 
per  annum,  as  a  license  tax  for  carrying  on  the  said  business  of 
banking  in  said  city.  Petitioner  paid  the  tax  under  protest,  and 
to  avoid  a  seizure  and  sale  of  its  property  by  said  mayor  and  city 
council.  Under  this  illegal  assessment,  it  has  paid  the  sums  of 
one  hundred  dollars  per  annum  from  the  year  1872  to  1877,  in- 
clusive, which  was  illegally  extorted,  as  aforesaid,  for  carrying  on 
said  business,  and  which  the  congress  of  the  United  States  had 
expressly  licensed.  Further,  petitioner  shows  that,  in  the  year  1874, 
while  engaged  in  said  business,  under  the  authority  aforesaid,  defend- 
ant assessed  a  tax  of  one  per  cent,  upon  the  capital  stock  of  peti- 


558  COMPULSION    OF    LAW. 

tioner,  making  the  sum  of  six  hundred  and  thirty-nine  dollars, 
which  was  illegal  and  void,  as  the  same  was  not  subject  to  taxation 
by  said  city.  Petitioner  protested  against  the  payment  of  said  sum, 
but  to  avoid  a  sale  and  seizure  of  its  property  by  said  mayor  and 
council  did  pay  the  said  sum,  in  the  year  1874,  and  the  sum  of  three 
hundred  dollars  for  the  year  1875.  Since  the  year  1875,  it  has 
urged  upon  said  defendants  the  justice  and  equity  of  returning  said 
sums,  thus  illegally  assessed,  but  they  now  refuse  to  pay  the  same ; 
wherefore,  petitioner  brings  suit,  etc. 

To  this  declaration,  defendants  demurred,  which  demurrer  was 
sustained  by  the  court,  and  plaintiff's  action  dismissed ;  wherefore 
plaintiff  excepted,  and  assigns  the  same  as  error. 

The  question  in  this  record,  submitted  for  our  consideration  is, 
whether  the  plaintiff  has  set  forth  a  good  and  legal  cause  of  action 
in  his  writ,  and  was  there  error  in  dismissing  the  same  on  demurrer? 
To  determine  this  question  properly,  it  will  be  necessary  to  inquire 
under  what  allegations  and  proofs  can  a  complaining  party  recover 
of  the  authorities  an  illegal  tax  that  has  been  levied,  and  collected 
of  the  party  complaining — that  is,  what  must  be  alleged  in  the 
writ  and  what  must  be  proved  on  trial,  for  it  is  well  established 
as  a  rule  of  pleading  that  everything  must  be  alleged  and  proved 
that  is  essential  to  a  recovery  under  the  rules  of  law  applicable  to  the 
cause  on  trial. 

1.  It  is  a  well  recognized  rule,  that  a  tax,  voluntarily  paid,  even 
though  illegally  assessed  by  the  taxing  power,  where  there  is  no 
misplaced  confidence,  and  no  artifice,  or  deception,  or  fraudulent 
practice  by  the  other  party,  cannot  be  recovered  back.     50   Ga., 

304- 

2.  So,  where  there  is  no  ignorance,  or  mistake  of  facts,  if  money 
is  paid  to  a  corporation  levying  under  a  claim  of  right,  under  an 
ignorance  or  mistake  of  law,  the  same  is  not  recoverable. 

Under  none  of  these  grounds  does  the  plaintiff  here  seek  to 
recover.  There  is  no  charge  of  ignorance  of  fact,  or  of  misplaced 
confidence,  artifice,  or  deception,  or  fraudulent  practice  alleged 
against  the  defendants  in  levying  and  collecting  this  tax,  and  by 
reason  of  which  it  was  paid  by  the  plaintiff.  There  is  only  one 
ground  alleged,  or  set  forth,  in  plaintiff's  writ,  and  this  is  made 
to  apply  to  all  of  the  taxes  alleged  to  be  illegally  paid,  and  which 
are  sought  to  be  recovered.  The  petitioner  alleges  that  "it  pro- 
tested against  the  payment  of  said  sums,  but,  to  avoid  the  sale  and 
seizure  of  its  property  by  said  mayor  and  council,  did  pay  the  said 
sums,"  etc. 

Duress  or  coercion  is  here  shadowed  forth  as  the  impelling  or 
moving  power  of  this  payment  now  sought  to  be  recovered.  But  do 
the  facts  or  causes  alleged  constitute  either  coercion  or  duress?  It  is 
well  settled  that  money  paid  under  protest  merelv  does  not  make 
the  payment  a  compulsory  one.  13  Gray  (Mass.),  476.  Mr.  Dil- 
lon, in  his  work  on  Corporations,  lays  down  clearly  and  intelli- 
gently the  rule.     He  says :    "The  coercion  or  duress   which   will 


RECOVERY    OF   TAXES    PAID.  559 

render  a  payment  involuntary,  must  in  general  consist  of  some 
actual  or  threatened  exercise  of  power  ])Ossessed,  or  believed  to  be 
possessed,  by  the  party  exacting  or  receiving  the  payment  over  the 
person  or  property  of  another,  from  which  the  latter  has  no  other 
means  of  immediate  relief  than  by  making  the  payment."  2  Dillon, 
sec.  943  (3d  edition)  ;  Radick  v.  Hudson,  95  U.  S.  210;  4  Gill  425; 
18  Cal.  256 ;  I  Ohio  St.  268.  Tested  by  this  rule,  are  there  any  allega- 
tions of  facts  in  this  writ  that  show  ''there  was  some  actual  or 
threatened  exercise  of  power,  by  the  party  exacting  or  receiving  the 
payment,  over  the  person  or  property  of  plaintiff,  from  which  he  had 
no  other  immediate  means  of  relief?"  We  see  none.  The  writ  must 
be  construed  most  strongly  against  the  pleader.  The  presumption  is, 
he  put  his  cause  on  record  as  favorably  to  himself  as  the  truth  of 
the  case  would  warrant,  and  all  he  sets  up  by  way  of  compulsion  to 
justify  or  excuse  the  payment  was,  he  did  so,  "under  protest,  and 
to  avoid  a  sale  and  seizure  of  his  property." 

Three  elements  are  essential,  and  must  concur,  to  sustain  an  action 
to  recover  back  money  on  the  ground  of  the  illegality  of  the  tax. 

First.     The  authority  to  levy  the  tax  must  be  wholly  zvanting. 

Second.  The  money  sued  for  must  have  been  actually  received 
by  the  defendant  corporation. 

Third.  The  payment  of  the  plaintiff  must  have  been  made  upon 
compulsion,  to  prevent  the  iuinicdiate  seizure  of  his  goods  or  the 
arrest  of  his  person,  and  not  voluntarily  made. 

Unless  these  conditions  concur,  paying  under  protest  will  not 
give  a  right  to  recovery.     Dillon  on  Mun.  Corporations,  sec.  940. 

There  being  no  statutory  right  regulating  this  action  in  our  state, 
we  are  remitted  to  the  common-law  rule  of  force,  and  this  is  well 
and  succinctly  stated  by  the  supreme  court  of  the  United  States  in 
two  recent  cases  where  actions  were  brought  to  recover  back  illegal 
taxes.  Lamborn  v.  Dickinson  &  Co.,  97  U,  S.  181  (1877)  ;  Union 
Pacific  R.  R.  V.  Dodge  County,  98  U.  S.  541  (1878).  In  these 
recent  cases  the  court  lays  down  the  following  rule :  "Where  a 
party  pays  an  illegal  demand,  with  full  knowledge  of  all  the  facts 
which  render  such  demand  illegal,  without  an  immediate  and  urgent 
necessity  therefor,  or  unless  to  release  (not  to  avoid)  his  person  or 
property  from  detention,  or  to  prevent  an  immediate  seizure  of  his 
person  or  property,  such  payment  must  be  deemed  voluntary,  and 
cannot  be  recovered  back.  And  the  fact  that  the  party,  at  the  time 
of  making  the  payment,  files  a  written  protest,  does  not  make  the 
payment  involuntary."  2  Dillon  947.  This  rule  was  also  fully  recog- 
nized in  a  decision  of  this  court  in  a  recent  case,  at  Sept.  Term,  1880, 
not  yet  published,^  of  the  Mayor  of  Savannah  v.  Feeley,  which  was  a 
much  stronger  case  than  the  one  at  bar.  Tested  by  this  rule  of  lia- 
bility, and  we  think  it  the  correct  one,  the  case,  as  set  forth  in  the 
plaintiff's  declaration,  falls  far  short  of  its  requirements.  But  it 
is  insisted  that  a  more  liberal  ruling  by  this  court,  in  favor  of  a 

'66Ga.  31. 


560  COMPULSION    OF    LAW. 

recovery  in  such  a  case,  was  made  in  48  Ga.  309.  In  that  case  the 
court  laid  down  the  rule,  generally,  that  a  tax  levied  without 
authority  of  law  may  be  recovered,  but  the  case  did  not  decide  that 
a  voluntary  payment  could  be  recovered  under  such  circumstances, 
nor  that  a  recovery  could  be  had  unless  the  payment  was  compulsory. 
Public  policy  does  not  favor  the  institution  of  such  suits.  The 
complainant  had  his  legal  right  to  resist  illegal  ta.xes  when  levied, 
and  when  he  acquiesces  and  knowingly  pays  an  illegal  assessment, 
and  the  sums  raised  are  disbursed  for  the  public  good,  of  which 
he  is  one  of  the  recipients,  courts  will  not  regard  with  favor  a  com- 
plaint that  might  have  been  prevented  by  the  exercise  of  that  dili- 
gence that  the  law  favors.  He  must  bring  himself  within  the 
strict  rule  the  law  has  fixed,  that  entitles  him  to  recover ;  otherwise 
he  must  abide  the  consequences  of  his  own  default  and  negligence. 
Let  the  judgment  of  the  court  below  be  affirmed. 


BOROUGH  OF  ALLENTOWN  v.  SAEGER. 

20  Pa.  St.  421. — 1853. 

This  suit  was  brought  before  a  justice  of  the  peace  by  Jacob 
Saeger  v.  The  Burgess  and  Town  Council  of  the  Borough  of  Allen- 
town,  to  recover  back  the  amount  of  taxes  illegally  assessed,  which 
had  been  paid  by  Saeger,  the  plaintiff,  to  the  tax  collector.  The 
illegal  tax  was  one  laid  for  borough  purposes  upon  moneys  at 
interest.  In  the  case  of  Bridges  v.  The  Borough  of  Allentown,  it 
had  been  decided  that  under  the  charter  of  the  borough,  moneys  at 
interest  were  not  taxable  for  borough  purposes. 

LowRiE,  J. — Part  of  the  taxes  charged  against  Saeger  was  legal 
and  part  illegal,  and  he  paid  the  whole  on  demand,  and  now  seeks 
to  recover  back  the  part  that  was  illegally  assessed.  It  cannot  be 
allowed.  The  case  is  very  different  from  that  of  payment  to  an 
individual  by  mistake.  It  was  submission  to  legitimate  authority 
which  was  prima  facie  right  in  its  exercise.  The  taxing  officers 
performed  their  duty  as  well  as  they  knew  how,  and  the  tax  was 
submitted  to  by  one  who  was  interested  in  the  purposes  for  which 
it  was  raised,  though  it  might  have  been  resisted  in  legal  form.  This 
was  an  assent  to  pay  more  in  support  of  the  government  of  the 
town  than  the  town  had  a  right  to  demand,  and  the  law  does  not 
imply  the  duty  of  refunding.  If  it  had  been  paid  under  protest, 
that  is,  with  notice  that  he  would  claim  it  back,  this  would  repel 
the  implication  of  an  assent,  and  give  rise  to  the  right  of  reclama- 
tion. 

In  another  aspect  it  is  unlike  a  payment  to  an  individual.  It  is 
a  contribution  to  a  common  fund,  in  the  benefits  of  which  he,  as  a 
citizen  or  property  holder,  participates.    It  is  intended  for  imme- 


)^ 


RECOVERY   OF   TAXES    PAID.  56I 

diate  expenditure  for  the  common  good,  and  it  would  be  unjust  to 
require  its  repayment,  after  it  had  been  thus,  in  whole  or  in  part, 
properly  expended,  which  would  often  be  the  case  if  suit  could  be 
brought  for  its  recovery  without  notice  having  been  given  at  the 
time  of  payment ;  and  there  would  be  no  bar  against  its  insidious 
spring  but  the  statute  of  limitations.  On  these  principles  the  de- 
fendant below  is  entitled  to  the  judgment. 

Judgment  reversed  and  judgment  for  the  defendant  below. 


UNION  INSURANCE  CO.  v.  CITY  OF  ALLEGHENY. 

loi  Pa.  St.  250. — 1882. 

Mr.  Justice  Mercur. — This  suit  was  to  recover  money  paid  by 
the  plaintiff  under  the  following  circumstances.  One  Logan  owned 
certain  lands  in  the  City  of  Allegheny,  and  in  August,  1874,  exe- 
cuted a  mortgage  thereon  to  the  plaintiff  in  the  sum  of  $4,000.  The 
latter  obtained  a  judgment,  issued  execution,  sold  the  property  at 
sheriff's  sale,  bid  it  in  for  $50,  and  obtained  a  deed  therefore  in 
July,  1877.  Municipal  taxes  had  been  assessed  on  the  property 
for  the  years  1875  and  1876,  which  could  not  be  collected  for  want 
of  goods  and  chattels  on  which  to  levy.  In  March,  1878,  claims 
for  these  taxes  were  filed  in  the  prothonotary's  office  under  the 
Act  of  14th  July,  1863,  which  provides  for  the  entry  of  judgment 
thereon,  and  issuing  the  execution  forthwith,  and  a  sale  of  the 
real  estate.  Execution  had  been  issued  on  one  of  the  judgments 
thus  obtained,  the  real  estate  then  owned  by  the  plaintiff  was  levied 
on,  and  advertised  to  be  sold.  The  plaintiff  paid  the  judgment 
under  protest.  A  year  thereafter,  the  city  solicitor  demanded  of  the 
plaintiff,  payment  of  the  other  judgment  for  the  taxes  of  1876,  with 
threat  unless  paid  he  would  proceed  to  enforce  payment  by  sale  of 
its  property.  Plaintiff  thereupon  paid  this  judgment  under  pro- 
test. This  action  is  to  recover  the  sums  thus  paid  for  the  taxes, 
interest  and  costs  covered  by  both  judgments.  It  is  conceded  now 
that  the  lien  of  these  taxes  was  discharged  by  the  sheriff's  sale 
of  the  property  made  in  1877.  The  filing  of  the  claims  the  year 
thereafter  created  no  lien  on  the  property.  Does  the  fact  that  they 
were  paid  under  protest  when  they  were  no  lien,  to  prevent  the  form  ^ 
of  sale  being  had,  give  a  right  to  recover  the  sums  so  paid? 

It  is  well  settled  as  a  general  rule  of  law,  that  money  voluntarily 
paid  on  a  claim  of  right,  where  there  has  been  no  mistake  of  fact, 
cannot  be  recovered  back  on  the  ground  that  the  party  supposed 
he  was  bound  in  law  to  pay  it  when  in  truth  he  was  not.  Clarke  v. 
Dutcher,  9  Cowen  674.  He  shall  not  be  permitted  to  allege  his 
ignorance  of  the  law,  and  it  shall  be  considered  a  voluntary  pay- 

WooDRUFp's  Cases — 36 


562  COMPULSION    OF    LAW. 

ment:  Id.  In  Brisbane  v.  Dacres,  5  Taunt.  144,  Mr.  Justice  Gibbs 
said,  where  a  man  demands  money  of  another  as  a  matter  of  right, 
and  he  pays  it  with  a  full  knowledge  of  the  facts  on  which  the 
demand  is  founded,  he  can  never  recover  back  the  sum  he  has  so 
voluntarily  paid.  The  same  principle  is  ruled  in  Mowatt  v.  Wright, 
I  Wend.  355  ;  and  in  Lyon  v.  Richmond,  2  Johns.  Ch.  Rep.  51.  Mr. 
Chief  Justice  Waite,  in  pronouncing  the  judgment  of  the  court  in 
Railroad  Co.  v.  Commissioners,  8  Otto  541,  which  was  a  suit  to 
recover  back  taxes  which  the  company  had  paid,  declared  it  to  be 
a  rule  of  the  common  law  that  "where  a  party  pays  an  illegal 
demand  with  a  full  knowledge  of  all  the  facts  which  render  such 
demand  illegal,  without  immediate  and  urgent  necessity  therefor,  or 
unless  to  release  his  person  or  property  from  detention,  or  to  pre- 
vent an  immediate  seizure  of  his  person  or  property,  such  payment 
must  be  deemed  voluntary,  and  cannot  be  recovered.  And  the  fact 
that  the  party  at  the  time  of  making  the  payment  files  a  written  pro- 
test does  not  make  the  payment  involuntary."  He  evidently  referred 
to  personal  property  of  which  the  owner  might  summarily  be  dis- 
possessed. 

In  Colwell  V.  Peden,  3  Watts  327,  it  was  held  that  assumpsit 
would  not  lie  against  a  landlord  for  money  paid  by  a  tenant  after 
a  warrant  of  distress  had  issued  in  good  faith  to  recover  rent 
alleged  to  be  in  arrear,  although  in  fact  no  rent  was  actually  due. 
It  was  there  argued  that  the  payment  was  not  voluntary,  that  the 
tenant  must  either  pay  or  have  his  furniture  sold ;  yet  the  court  held 
that  the  tenant  could  not  recover  by  reason  of  there  being  no  rent 
due.  He  might  have  maintained  either  trespass  or  replevin.  Espy 
V.  Allinson,  9  Id.  462,  was  the  case  of  a  purchaser  of  land  at  a 
sherifif's  sale,  who,  under  the  impression  that  he  was  liable  to  pay 
a  bond,  secured  by  mortgage  on  the  property  purchased,  paid  the 
same,  and  afterwards  discovered  that  he  was  not  bound  to  pay  it 
by  reason  of  the  mortgage  having  been  previously  satisfied  of  rec- 
ord, it  was  held  he  could  not  recover  the  money  back,  as  the  holder 
of  the  bond  had  conscientiously  received  the  same.  In  Boas  v. 
Updegrove,  5  Barr.  516,  an  execution  had  issued  on  a  judgment 
against  the  former  owner  of  the  land  to  sell  it.  The  terre-tenant, 
supposing  the  judgment  to  be  still  a  lien  on  the  land,  after  it  was 
advertised  for  sale,  paid  the  money  to  the  sherifif,  who  returned  the 
writ  "money  made  by"  the  terre-tenant.  Before  the  return  day  of 
the  writ  the  latter  ruled  the  money  into  court  and  proved  that  the 
judgment  was  no  lien  and  that  he  had  paid  it  under  a  mistake. 
It  was  held  to  be  a  voluntary  payment  wdiich  the  terre-tenant  could 
not  have  recovered  back,  and  that  the  plaintifif  in  the  execution  was 
entitled  to  the  money.  It  was  said  to  be  money  which  the  creditor 
might  conscionably  receive  and  which  he  might  conscionably  re- 
tain. In  Taylor  v.  The  Board  of  Health,  7  Casey  73,  it  was  held 
that  a  payment  of  taxes  is  not  compulsory  because  made  under  a 
threat,  express  or  implied,  that  the  legal  remedies  for  its  collec- 
tion will  be  resorted  to.     It  is  there  said,  "We  state  the  case  as  one 


RECOVERY    OF   TAXES    PAID.  563 

of  a  voluntary  payment  of  taxes  because  there  is  no  pretense  that 
the  defendant's  officers  did  any  more  than  demand  the  tax  under 
the  supposed  authority  of  the  law  ;  and  this  is  no  more  compulsion 
than  when  an  individual  demands  a  supposed  right." 

Again,  in  Real  Estate  Savings  Institution  v.  Linder,  24  P.  F. 
Smith,  371,  it  was  held  that  one  who  voluntarily  pays  money  with 
knowledge  or  means  of  knowledge  of  the  facts,  and  without  fraud 
on  him,  cannot  recover  it  back  because  he  paid  it  in  ignorance  of 
the  law.  In  Dillon  on  Municipal  Cor.,  sec.  751,  the  requisites  to 
maintain  an  action  ex  coiitraciu  against  a  municipal  corporation  to 
recover  back  money  paid  to  it  for  taxes  are  said  to  be  three :  i.  The 
authority  to  levy  the  tax  must  be  wholly  wanting  or  the  tax  itself 
wholly  unauthorized,  so  that  the  tax  is  absolutely  void.  2.  The 
money  sued  for  must  have  been  actually  received  by  the  defendant 
corporation  for  its  own  use.  3.  The  payment  by  the  plaintiff  must 
have  been  made  upon  compulsion  to  prevent  the  immediate  seizure 
of  his  goods  or  arrest  of  the  person,  and  not  voluntarily.  "Unless 
these  conditions  concur,  payment  under  protest  will  not  give  a  right 
of  recovery."  No  authority  is  found  which  holds  that  money  paid 
to  prevent  the  sale  of  lands  under  a  threat  to  sell  the  same  on  a 
judgment  which  is  not  a  lien  thereon,  can  be  recovered  back  by 
reason  thereof. 

Then,  to  refer  to  the  facts  of  this  case,  we  find  no  allegation 
that  the  taxes  were  illegally  laid.  No  averment  of  irregularity  in 
making  the  assessment  or  in  laying  the  taxes.  The  city  had  un- 
doubted jurisdiction  and  power,  and  all  the  forms  of  the  law  were 
complied  with.  The  only  alleged  wrong  consists  in  the  attempt  to 
collect  the  taxes  by  proceedings  against  the  land  after  it  had  ceased 
to  be  liable  for  the  payment  thereof.  At  the  time  the  taxes  were 
paid  each  party  was  fully  informed  of  all  the  facts  bearing  on  the 
case.  The  plaintiff  knew  them  then  as  well  as  now.  They  were 
all  of  record,  and  most  of  them  in  the  direct  line  of  its  title.  It  knew 
when  the  mortgage  was  executed.  It  knew  the  time  when  it  pur- 
chased the  property  at  sheriff's  sale.  The  claims  filed  showed  on 
their  face  that  they  were  for  taxes  laid  after  the  execution  of  the 
mortgage,  and  for  years  prior  to  the  sheriff's  sale.  The  only  ques- 
tion about  which  the  parties  could  possibly  differ  was  one  of  law. 
That  was,  whether  under  the  well  known  and  undisputed  facts  the 
lien  of  the  taxes  was  divested.  The  city  proposed  to  test  it  in  a 
regular  legal  form.  They  had  been  duly  laid  ;  they  had  never  been 
paid  to  the  city ;  the  property  did  not  sell  for  enough  to  pay  them, 
if  it  had  claimed  and  obtained  the  whole  fund  produced  by  the 
sale.  They  remained  unsatisfied  against  Logan.  There  was  noth- 
ing inequitable  or  unconscionable  in  the  city's  acceptance  of  the 
taxes  and  in  retaining  them. 

It  is  said  the  plaintiff  had  not  had  its  day  in  court.  True,  it 
had  not.  The  taxes  were  not  laid  against  it,  nor  its  property.  The 
company  did  not  propose  to  attack  the  validity  of  the  assessment. 
In  several  of  the  cases  cited  the  party  had  had  no  day  in  court. 


564  COMPULSION    OF    LAW. 

No  hearing  or  opportunity  of  being  heard ;  yet  he  might  have  had  it 
before  making  payment,  by  appropriate  action.  Faihng  to  avail 
himself  of  it,  he  waived  his  rights.  So  here  by  application  to  the 
equitable  powers  of  the  court  or  by  a  bill  in  equity  execution  might 
have  been  stayed,  and  the  claim  removed  from  the  record.  No 
immediate  and  urgent  necessity  existed  for  the  payment  of  the 
taxes  to  protect  the  property  of  the  plaintiffs.  Its  goods  were  not 
about  to  be  seized.  The  execution  could  not  take  from  it  the  pos- 
session of  the  land ;  nor  could  a  sale,  if  made,  have  had  such  effect. 
It  follows  that  all  the  facts  in  the  case  are  clearly  insufficient  to 
enable  the  plaintiff  to  maintain  this  action,  and  the  learned  judge 
was  correct  in  so  holding.  Judgment  affirmed. 

Sharswood,  C.  J.,  and  Gordon  and  Trunkey,  JJ.,  dissented. 


GOULD  V.  BOARD  OF  COMMISSIONERS  OF  HENNEPIN 

COUNTY. 

76  Minn.  379. — 1899. 

Upon  the  application  for  re-argument,  p.  381. 

Per  Curiam. — *  *  *  The  chief  ground  upon  which  a  re- 
argument  is  asked  is  that  the  court  did  not  give  due  weight  to  the 
fact  that,  according  to  the  complaint,  the  plaintiff  paid  the  tax  in 
ignorance  of  the  fact  that  any  part  of  it  was  illegal.  It  should  be 
kept  in  mind  that  the  rules  which  apply  to  actions  to  recover  back 
money  paid  by  one  person  to  another  do  not  apply,  to  their  full 
extent,  to  actions  to  recover  back  from  a  county,  town,  or  other 
municipality  money  in  payment  of  taxes  illegally  or  irregularly 
assessed  or  levied.  There  are  certain  considerations  of  public  pol- 
icy which  must  necessarily  be  taken  into  consideration.  If  a  party 
could  recover  back  from  the  public  whenever  there  was  some  illegal 
or  irregular  action  on  the  part  of  public  officers  in  the  assessment 
or  levy  of  the  tax,  merely  because  he  was  ignorant  of  such  illegality 
or  irregularity  at  the  time  he  paid  the  tax,  the  public  finances  would 
be  thrown  into  chaos,  and  frequently  municipalities  would  be  re- 
duced to  utter  bankruptcy.  Municipalities  do  not  guaranty  the  tax- 
payers correct  action  on  part  of  their  officers.  Irregular  action  does 
not  necessarily  injure  the  parties  concerned,  and,  when  it  does,  the 
remedies  given  by  review,  appeal,  or  by  way  of  defense  to  proceed- 
ings to  enforce  the  tax  are  supposed  to  afford  full  redress.  Cooley, 
Tax'n,  566.  In  this  case  the  ])roperty  was  subject  to  taxation.  The 
illegality  or  irregularity  complained  of  consisted  exclusively  of  the 
action  of  the  state  board  of  equalization  in  raising  the  assessed 
value  of  one  class  of  real  estate  in  the  town  without  making  the 
same  increase  on  another  class.  This  illegality  or  irregularity  ap- 
peared from  the  public  records.   Plaintiff'  had  the  means  of  discover- 


RECOVERY    OF   TAXES    PAID.  565 

ing  this, and  he  was  just  as  much  bound  to  inform  himself  of  the  fact 
as  were  the  pubHc  authorities.  Every  man  is  supposed  to  know  the 
law.  If  plaintilT  was  ignorant  of  the  facts  of  which  he  now  com- 
plains when  he  paid  the  tax,  it  was  because  he  failed  to  avail  himself 
of  the  means  of  information  which  were  open  to  him.  His  tax  hav- 
ing been  paid  without  investigation,  and  without  duress  of  either  per- 
son or  property,  the  payment  must  be  deemed  voluntary.  We  have 
not  the  time  now  to  go  extensively  into  the  subject  when  taxes  paid 
may  be  recovered  back  from  a  public  municipality,  but  it  may  be  sug- 
gested that  in  many  states  there  are  statutes  which  extend  the  right 
much  beyond  what  it  would  otherwise  be.  Many  of  their  statutes,  and 
the  decisions  under  them,  are  to  be  found  in  25  Am.  &  Eng.  Enc. 
Law,  465  et  seq.  And,  even  where  there  are  no  statutes  governing  the 
subject,  the  decisions  of  the  courts  are  not  always  in  harmony.  But, 
upon  the  particular  facts  of  this  case,  we  think  that  a  recovery 
could  not  be  had,  under  the  rulings  of  any  well-considered  case 
in  any  court.  Application  denied. 


Sheldon,  J.,  in  FALLS  v.  CITY  OF  CAIRO. 
58  III.  403. — 1871. 

Admitting  these  assessments  to  have  been  illegal,  unconstitu- 
tional and  void,  because  the  making  of  the  assessments  was  confined 
to  the  particular  property  fronting  upon  the  street,  which  might  be 
specially  benefited,  and  was  not  extended  to  all  property  which 
might  be  so  benefited,  after  having  paid  them,  under  the  circum- 
stances of  this  case,  is  the  appellant  entitled  to  recover  the  money 
back,  on  the  ground  of  the  payment  having  been  a  compulsory, 
and  not  a  voluntary  one? 

The  precept  which  was  in  the  hands  of  the  officer  at  the  time 
these  assessments  w^ere  paid,  did  not  authorize  him  to  levy  upon 
the  goods  and  chattels  of  the  appellant,  but  directed  him  merely  to 
make  sale  of  the  lots  to  satisfy  the  assessments. 

In  Bradford  v.  The  City  of  Chicago,  25  111.  411,  it  was  held  that 
the  payment  of  an  assessment  made  to  a  collector  of  taxes,  while 
having  in  his  hands  a  warrant  to  levy  and  collect  the  amount  of 
the  assessment  of  the  goods  and  chattels  of  the  owner,  might  be 
considered  compulsory,  and  made  under  such  circumstances  as 
would  authorize  the  party  paying  the  money  to  recover  back  the 
same  if  the  assessment  was  illegally  made.  But  it  was  decided  in 
Stover  V.  Mitchell,  45  111.  213,^  that  a  levy  of  an  execution  upon 

*  The  court  in  this  case  says  (p.  217)  :  "We  can  discover  no  duress  or  com- 
pulsion where  an  execution  against  A  is  levied  on  the  land  of  B.  The  latter  is 
not  disturbed  in  his  person,  or  the  possession  or  enjoyment  of  his  property. 
If  confident  of  his  title  he  need  give  himself  no  trouble.  If  the  superiority  of 
his  title  to  the  lien  of  the  judgment  is  questionable,  or  depends  on  matters 


566  COMPULSION    OF    LAW. 

one's  land,  did  not  make  a  case  of  such  duress  or  compulsion,  that 
a  payment  made  to  prevent  the  sale  of  the  land  under  the  execu- 
tion could  be  recovered  back  as  a  compulsory  payment.  It  was 
held  to  be  a  voluntary  payment,  and  not  one  made  under  duress ; 
and  it  is  there  said :  "It  is  insisted,  that  the  levy  of  the  execution 
on  Stover's  land  was  the  exercise  of  such  compulsion  as  to  interfere 
with  Stover's  freedom  of  action.  No  case  is  cited  going  to  this 
extent,  and  we  venture  to  say  none  can  be  found.  In  order  fc 
render  such  a  payment  compulsory,  such  a  pressure  must  be  brought 
to  bear  upon  the  person  paying,  as  to  interfere  in  some  way  with 
the  free  enjoyment  of  his  rights  of  person  or  property,"  citing 
Bradford  v.  The  City  of  Chicago,  supra,  and  Elston  v.  The  City 
of  Chicago,  40  111.  514. 

There  was  here  no  interference  with  the  plaintiff's  free  enjoy- 
ment of  his  property,  and  there  would  not  have  been,  by  making 
sale  of  it  under  the  precept.  Such  sale  would  not  have  disturbed 
his  possession  of  the  property ;  he  would  then  have  had  two  years 
to  redeem  from  the  sale,  and  if,  at  the  end  of  that  time,  the  pur- 
chaser had  obtained  his  tax  deed,  and  brought  his  action  of  eject- 
ment for  the  recovery  of  the  possession,  the  illegality  of  the  assess- 
ments could  have  been  shown  in  defense,  and  the  recovery  of  pos- 
session defeated.  Or,  had  the  plaintiff  desired  to  remove  any  cloud 
which  might  be  brought  upon  his  title  by  such  a  sale,  he  could 
have  had  his  remedy  for  that  purpose.  It  is  very  unlike  the  case 
of  the  payment  of  money  made  to  avoid  the  seizure  of  goods,  or 
to  gain  possession  of  them,  where  there  may 'be  a  pressing  necessity 
for  their  immediate  use,  and  being  of  a  movable  and  perishable 
character,  any  legal  remedy  might  be  inadequate  for  full  protection. 
The  reasons  upon  which  it  is  held,  that  when  a  party  is  compelled, 
by  duress  of  his  person  or  goods,  to  pay  money  for  which  he  is  not 
liable,  the  payment  is  not  voluntary,  but  compulsory,  and  that  he 
may  rescue  himself  from  such  duress  by  payment  of  the  money,  and 
afterwards,  on  proof  of  the  fact,  recover  it  back,  do  not  apply  in  the 
case  of  real  estate  threatened  with  such  action,  as  in  the  present 
case.  And  we  think  the  payment  of  these  assessments  was  not 
made  under  such  circumstances  of  constraint  and  compulsion  as  to 
except  it  from  the  operation  of  the  legal  principle,  that  if  a  party, 
with  full  knowledge  of  all  the  facts  of  the  case,  voluntarily  pays 
money  in  satisfaction  or  discharge  of  a  demand  unjustly  made  on 
him,  he  cannot  afterwards  recover  back  the  money. 

in  pais,  resting  in  parol  proof,  and  he  fears  a  sale  may  create  a  cloud  upon 
his  title,  he  can  stay  the  sale  by  injunction.  Tf,  instead  of  this,  he  prefers  to 
buy  his  peace,  he  cannot  subsequently  say  he  acted  under  compulsion,  and 
call  on  the  courts  to  give  him  back  his  money." 


y 

RECOVERY   OF   TAXES    PAID.  567 

FLEETWOOD  v.  CITY  OF  NEW  YORK. 
2  Sandf.  475  (Superior  Ct.  of  New  York  City). — 1849. 

Assumpsit,  brought  to  recover  the  sum  of  $2,527.22,  paid  by 
Fleetwood,  the  plaintiff,  to  the  defendants,  February  2^,  1845,  to 
redeem  several  lots  of  ground  belonging  to  him,  from  a  sale  thereof, 
made  by  the  defendants  on  the  13th  of  June,  1843,  under  an  alleged 
assessment  for  Ulling  the  lots. 

Sandford,  J. — *  *  :):  *  'pj^g  important  question  remains, 
can  the  plaintiffs  recover  back  the  money  paid?  The  payments 
were  not  made  under  any  mistake  of  fact.  The  plaintiffs  declared 
and  insisted  that  the  assessments  and  the  sales  were  void ;  and  the 
referee  has  adjudged  that  they  were  void.  There  was  no  mistake 
of  law  even ;  for  the  plaintiffs  knew  perfectly  well  that  a  sale  under 
a  void  assessment  conferred  no  title  upon  the  purchaser. 

It  is  contended,  however,  that  the  payments  were  involuntary, 
and  were  made  by  compulsion.  That  the  sales  constituted  a  cloud 
upon  the  title,  which  cloud  circumstances  compelled  the  plaintiffs 
to  remove ;  and  it  is  intimated  by  the  points  made  in  Mr.  Post's 
case,^  that  his  payment  was  made  through  coercion,  oppression, 
imposition,  fraud,  or  by  taking  undue  advantage  of  his  situation, 
or  by  wrongfully  exacting  it,  colore  officii. 

I.  In  regard  to  the  cloud  upon  the  title.  The  muniments  of 
title,  upon  an  assessment  sale,  consist  of  several  proceedings,  all  of 
which  are  indispensable  to  its  validity,  and  if  one  be  wanting,  no 
title  is  shown.  Of  these  links  in  the  chain,  the  plaintiff  insists  that 
three  at  least  never  existed,  viz. :  the  original  ordinance  directing 
the  filling,  the  assessment  of  the  expense,  and  the  advertisement 
for  redemption.  Each  of  these  proceedings  forms  an  essential  part 
of  the  record  of  the  assessment  title,  and  in  their  absence,  such  title 
is  void  upon  its  face.  See  the  observations  of  the  Chancellor,  in 
Wiggin  v.  The  Mayor,  etc.,  of  New  York  (9  Paige  16),  and  Van 
Doren  v.  The  Same  Defendants  (Id.  388).  A  conveyance  or  judg- 
ment, void  upon  its  face,  does  not  constitute  a  cloud  upon  the  title ; 
and  the  assertion  of  a  title  under  such  a  conveyance,  or  of  a  lien  by 
virtue  of  such  a  judgment,  does  not  afford  a  ground  for  equitable 
interference  ;  much  less  does  it  constitute  legal  compulsion.  There 
are  cases  of  duress  of  personal  property  in  which  payments  for 
its  relief  are  deemed  involuntary,  and  the  money  may  be  recovered 
back.  Most  of  these  have  arisen  upon  seizures  of  goods  under 
revenue  or  excise  laws,  and  by  public  officers  acting  imder  process 
or  warrant  of  law.  The  principle  has  been  extended,  occasionally, 
to  cases  where  bailees,  or  others,  who  came  into  the  possession  of 
goods  lawfully,  have  exacted  more  than  was  due.  before  they  would 
relinquish  such  possession.     It  is  founded  upon  the  movable  and 

^  Argued  and  decided  with  this  case. — Ed. 


1 

568  COMPULSION    OF    LAW, 

perishable  character  of  the  property,  and  the  uncertainty  of  a  per- 
sonal remedy  against  the  wrongdoer.  The  reasons  for  the  rule 
are  wholly  inapplicable  to  real  estate,  and  we  are  not  aware  of  any 
instance  in  which  it  has  been  applied  to  that  species  of  property. 
On  this  subject  of  payments  compelled  by  duress  of  property,  we 
refer  to  Chase  v.  Dwinall  (7  Greenl.  134)  ;  Ellicott  v.  Swartwout 
(10  Peters  137)  ;  and  Clinton  v.  Strong  (9  John.  370). 

It  cannot  be  said,  therefore,  that  the  payments  in  question  were 
made  through  compulsion,  coercion  or  oppression.  There  is  no 
pretense  that  there  was  any  imposition  or  fraud  in  the  case.  There 
was  no  advantage  taken  of  the  situation  of  the  parties,  nor  was 
the  money  in  any  sense  exacted  from  them.  The  corporation,  whose 
agent,  the  street  commissioner,  received  the  money,  was  not  only 
passive  in  respect  to  the  payment,  but  so  far  as  the  case  discloses, 
had  no  interest  in  the  matter.  The  money,  if  the  lots  were  re- 
deemed, belonged  to  the  purchasers ;  and  no  part  of  it  was  to  be  re- 
tained by  the  corporation,  and  it  was  to  the  latter  totally  indifferent 
whether  the  redemption  should  be  made  or  omitted. 

The  simple  truth  of  the  affair  is  this.  The  corporate  authori- 
ties had  sold  these  lots  for  assessments  which  they  and  the  pur- 
chasers alleged  to  be  valid  in  fact  and  in  law.  The  original  owners 
were  entitled  to  redeem,  on  paying  the  bids  with  interest  to  the 
purchasers,  through  the  street  commissioner.  Those  owners 
averred  and  insisted  that  the  assessments  were  absolutely  void,  both 
in  fact  and  in  law,  and  that  the  sales  and  conveyances  were  equally 
void.  Thus  the  parties  were  at  issue,  each  claiming  a  right,  and 
the  plaintiffs  fully  apprised  of  the  grounds  of  the  opposing  claim. 
It  became  desirable  for  the  one  plaintiff  to  sell  his  lots,  and  for  the 
other  to  mortgage  his,  and  the  assessment  claims  presented  an  ob- 
stacle to  the  accomplishment  of  their  wishes.  The  plaintiffs,  rather 
than  forego  the  opportunity  of  mortgaging  and  selling,  chose  to  pay 
the  assessments  claimed ;  instead  of  abiding  the  result  of  a  litigation 
testing  their  validity. 

In  our  view,  this  clearly  constituted  a  voluntary  payment,  which 
according  to  a  well  settled  and  valuable  principle  of  law,  cannot 
be  recalled.  Silliman  v.  Wing,  7  Hill  159;  Supervisors  of  Onon- 
daga V.  Briggs,  2  Denio  26,  39 ;  Brisbane  v.  Dacres,  5  Taunt.  143 ; 
Robinson  v.  City  of  Charleston,  2  Richardson  317.  And  see  Ege 
V.  Koontz,  3  Barr's  Penn.  R.  109.     *     *     *     * 


\  WHITNEY  V.  CITY  OF  PORT  HURON.         ^,  y"^^ 
88  Mich.  268.— 1891. 

MoR.SE,  J. — The  plaintiff  sues  to  recover  taxes  paid  by  her  under 
protest  on  a  special  assessment  levied  for  the  paving  of  Pine  Grove 
Avenue,  in  the  city  of  Port  Huron.     She  had  judgment  in  the  court 


RECOVERY   OF   TAXES    PAID.  569 

below,  the  verdict  of  the  jury  being  directed  by  the  circuit  judge 
in  her  favor.     *     *     *     * 

It  is  also  claimed  that  her  payment  of  the  tax  was  voluntary. 
The  tax  was  paid  April  2,  1886,  and  across  the  face  of  the  receipt 
was  written  as  follows :  "Paid  under  protest,  to  ])rotect  prop- 
erty from  being  sold,  and  on  account  of  taxes  being  illegal."  The 
city  treasurer  had  advertised  the  plaintiff's  property  for  sale,  and 
she  had  the  right  to  presume  that  he  would  proceed  with  the  sale. 
The  fact  that  the  sale  would  have  conveyed  no  title  to  the  puchaser 
on  account  of  the  illegality  of  the  tax,  or  that  she  could  have  re- 
moved the  cloud  upon  her  title  caused  by  such  sale  by  legal  proceed- 
ings had  no  bearing  upon  her  right  to  pay  the  tax  under  pro- 
test, and  thereby  sto])  the  sale.  Nor  was  it  any  the  less  an  involun- 
tary payment  under  the  law.  If,  because  a  tax  is  illegal,  and  a  sale 
of  property  under  it  would  be  void,  a  payment  to  prevent  the  seizure 
or  sale  of  one's  property  cannot  be  considered  an  involuntary  pay- 
ment, then  our  statute  providing  for  the  payment  of  taxes  under 
protest  would  be  of  no  force  or  use.  If  the  citizen's  property  is 
threatened  with  seizure  under  a  tax  warrant,  or  his  real  estate  is 
advertised  for  sale  to  collect  delinquent  taxes,  he  is,  equally  in  both 
cases  entitled  to  free  his  property  by  a  payment  of  the  tax  under 
protest,  and  such  payment  will  not  be  considered  voluntary.  It  was 
held  in  Detroit  v.  Martin,  34  Mich.  170,  that  one  who  has  full 
knowledge  of  all  facts,  being  conclusively  presumed  to  know 
the  law,  is  presumed  to  know  that  an  assessment,  laid  under 
a  statute  which  is  unconstitutional  and  void,  cannot  be  made 
the  basis  of  a  sale  that  could  constitute  any  cloud  upon 
his  title,  and  therefore  to  know  that  he  could  not  be  injured 
by  it ;  and  that  a  payment  of  a  tax  under  protest,  in  such  a  case, 
where  no  seizure  of  goods  or  of  the  person  had  been  made  or 
threatened,  and  where  the  officer  had  no  authority  to  compel  pay- 
ment otherwise  than  by  a  sale  of  land,  which  could  injure  no  one, 
would  not  be  other  than  a  voluntary  payment,  as  a  protest  would 
not  change  the  character  of  the  payment.  It  was  held  also  that  a 
sale  of  the  land  under  such  circumstances  would  not  create  a  cloud 
upon  the  owner's  title.  This  may  be  good  law  when  applied  to 
proceedings  under  an  unconstitutional  enactment,  which  is  no  law, 
and  is  held  to  confer  no  rights  upon  any  one,  as  all  must  be  pre- 
sumed to  know  that  it  is  unconstitutional  and  void ;  but  it  cannot 
be  applied  to  cases  where  the  statute  under  which  the  proceedings 
to  levy  the  tax  are  taken,  is  constitutional,  and  where  the  illegality 
of  the  tax  is  claimed  from  irregularities  or  defects  in  the  statutory 
proceedings.  If  it  were  so,  it  would  require  of  the  landowner  a 
greater  knowledge  of  the  law  than  attorneys,  or  even  courts,  possess. 
For  instance,  in  the  present  case,  able  attorneys  for  the  defendant 
are  claiming  that  the  tax  paid  by  the  plaintiff  was  a  legal  one,  and 
that  all  the  proceedings  in  assessing  it  were  lawful ;  yet  at  the  same 
time  they  argue  that,  if  it  should  be  determined  by  this  court  to  be 
illegal  for  any  reason,  then  the  plaintiff's  payment  must  be  con- 


5/0  COMPULSION    OF    LAW. 

sidered  a  voluntary  one,  and  she  cannot  recover  what  she  has  paid, 
because  she  and  every  one  else  are  presumed  to  know  that  the 
tax  is  void,  and  that  a  sale  under  it  could  convey  no  title,  and 
therefore  cast  no  cloud  over  her  title.  But  the  fact  remains,  as 
every  one  knows,  that  a  tax-deed  or  any  other  purported  convey- 
ance of  land  does  cloud  the  title,  and  that  it  can  never  be  sold  or 
exchanged  as  readily,  and  seldom  for  as  great  a  price,  as  when 
unincumbered,  although  it  may  be  patent  to  the  courts  that  such 
deed  or  conveyance  is  void  and  of  no  consequence,  as  far  as  the 
holding  of  the  title  is  concerned ;  and,  in  my  opinion,  the  owner  of  the 
land  has  the  right,  in  law  and  equity,  to  treat  every  such  tax-deed  or 
other  conveyance  as  a  cloud  upon  his  title,  and  to  take  such  steps 
to  get  rid  of  it,  or  to  prevent  its  issue  or  record,  as  the  law  author- 
izes, when  the  title  is  actually  clouded,  as  defined  by  some  of  the 
authorities.  A  cloud  upon  a  title  is  but  an  apparent  defect  in  it. 
If  the  title,  sole  and  absolute  in  fee,  is  really  in  the  person  moving 
against  the  cloud,  the  density  of  the  cloud  can  make  no  difference 
in  the  right  to  have  it  removed.  Anything  of  this  kind  that  has  a 
tendency,  even  in  a  slight  degree,  to  cast  doubt  upon  the  owner's 
title,  and  to  stand  in  the  way  of  a  full  and  free  exercise  of  his 
ownership,  is,  in  my  judgment,  a  cloud  upon  his  title  which  the  law 
should  recognize  and  remove. 

The  third  objection  is  that  the  protest  of  plaintiff  was  not  suffi- 
ciently specific.  Across  the  face  of  the  receipt  for  the  taxes  paid 
by  the  plaintiff  was  the  following:  "Paid  under  protest,  to  protect 
property  from  being  sold,  and  on  account  of  taxes  being  illegal." 
In  support  of  this  objection  we  are  cited  to  Louden  v.  East  Saginaw, 
41  Mich.  26,  2  N.  W.  Rep.  182 ;  Lumber  Co,  v.  Crystal  Falls  Tp., 
60  Mich.  514,  27  N.  W.  Rep.  666;  Iron  Co.  v.  Crystal  Falls  Tp., 
60  Mich.  79,  26  N.  W.  Rep.  840.  The  two  last  cases  do  not  apply, 
as  the  protest  was  made  under  a  special  statute.  In  Louden  v.  East 
Saginaw  the  objection  to  the  tax  did  not  go  to  the  jurisdiction  of 
the  city  to  enter  upon  the  work,  but  to  irregularities  in  the  assess- 
ment of  the  tax,  and  it  was  held  that  the  plaintiff  should  have  point- 
ed out  more  specifically  his  reason  for  his  objections  to  the  tax,  and 
why  he  asked  that  the  assessment  against  him  should  be  refunded. 
It  was  said :  "The  case  stands  on  a  very  different  footing  from  one 
relating  to  an  entirely  illegal  assessment.  The  only  illegality  here 
was  in  a  notice  which  may  or  may  not  have  been  seen  by  the  parties." 
Louden  v.  East  Saginaw.  41  Mich,  at  page  22,  2  N.  W.  Rep.  182. 
In  the  present  case  the  claim  is  that  the  whole  proceedings  were 
void,  and  without  jurisdiction.  A  case  involving  the  legality  of  the 
proceedings  to  pave  Pine  Grove  Avenue  had  been  decided  in  this 
court  before  the  council  were  asked  to  refund  this  money,  and  that 
body  then  well  knew  that  the  whole  proceeding  had  been  declared 
void  for  want  of  jurisdiction,  for  the  reason  that  the  resolution  pro- 
viding for  the  grading  and  paving  of  the  street  had  not  been 
approved  by  the  mayor  as  provided  by  the  charter  of  Port  Huron. 


RECOVERY   OF   TAXES    PAID.  57I 

Twiss  V.  City  of  Port  Huron,  63  Mich.  528-532    30  N.  W.  Rep. 

The  judgment  is  affirmed  with  costs.     The  other  justices   con- 
curred. 


Gordon,  J.,  in  MONTGOMERY  v.  COWLITZ  COUNTY. 
14  Wash.  St.  230. — 1896. 

There  is  much  conflict  in  the  authorities  as  to  whether,  under  the 
circumstances  of  a  given  case,  a  payment  is  to  be  regarded  as  vokm- 
tary  or  compulsory,  especially  where  the  payment  is  made  to  prevent 
a  threatened  sale  or  interference  with  real  estate.  Without  attempt- 
ing any  analysis  of  the  many  cases  bearing  upon  that  question,  we 
are  satisfied  to  adopt  the  rule  announced  in  Detroit  v.  Martin,  34 
Mich.  170:  "How  would  such  sale  have  affected  plaintiff's  right 
or  title  thereto?  Would  such  sale  have  constituted  a  cloud  upon 
his  title?  Assuming  that  it  would,  in  order  to  prevent  this,  he 
could  have  paid  the  amount  under  protest,  and  afterwards  have 
maintained  an  action  to  recover  it  back.  If  a  sale,  under  the  facts 
stated,  would  not  have  constituted  a  cloud  upon  his  title,  then  it 
may  be  at  least  doubtful  whether  the  plaintiff  has  any  remedy." 
And  we  may  add  that  there  is  much  authority  to  be  found  in  sup- 
port of  this  view.  Bruecher  v.  Village  of  Port  Chester,  31  Hun 
551  (affirmed  in  loi  N.  Y,  240,  4  N.  E.  272)  ;  Mills'  Guardian  v. 
City  of  Hopkinsville,  (Ky.)  ii  S.  W.  776;  Whitney  v.  City  of  Port 
Huron,  88  Mich.  268,  50  N.  W.  316;  Bucknall  v.  Story,  46  Cal.  589; 
State  V.  Nelson,  41  Minn.  25,  42  N.  W.  548 ;  Seeley  v.  Town  of 
Westport,  47  Conn.  294;  Guy  v.  Washburn,  23  Cal.  iii  ;  Stephan  v. 
Daniels,  27  Ohio  St.  527 ;  Valentine  v.  City  of  St.  Paul,  34  Minn. 
446.  26  N.  W.  457. 

This  brings  us  to  the  question  of  whether  the  sale  which  was  here 
threatened  would,  if  consummated,  have  created  any  cloud  upon 
appellant's  title.  Upon  the  part  of  the  respondent  it  is  contended  that 
the  lands  were  not  subject  to  taxation,  and  that  the  assessment  and 
all  subsequent  proceedings  were  absolutely  void,  and  that  by  a  sale, 
as  was  contemplated,  no  cloud  would  have  been  created  upon  appel- 
lant's title.  "A  cloud  upon  one's  title  is  something  which  consti- 
tutes an  apparent  incumbrance  upon  it,  or  an  apparent  defect  in  it ; 
something  that  shows  prima  facie  some  right  of  a  third  party,  either 
to  the  whole,  or  some  interest  in  it.  An  illegal  tax  may  or  may 
not  constitute  such  a  cloud.  If  the  alleged  tax  has  no  semblance  of 
legality ;  if,  upon  the  face  of  the  proceedings,  it  is  wholly  unwar- 
ranted by  law,  or  for  any  reason  totally  void,  so  that  any  person  in- 
specting the  record,  and  comparing  it  with  the  law,  is  at  once  apprised 
of  the  illegality, — the  tax  it  would  then  seem,  could  neither  con- 
stitute an  incumbrance  nor  an  apparent  defect  of  title,  and  there- 


572  COMPULSION    OF    LAW. 

fore,  in  law,  could  constitute  no  cloud.  *  *  *  When,  however, 
the  illegality  or  fatal  defect  does  not  appear  on  the  face  of  the  rec- 
ord, but  must  be  shown  by  evidence  aliunde,  so  that  the  record 
would  make  out  a  prima  facie  right  in  one  who  should  become  pur- 
chaser, and  the  evidence  to  rebut  this  case  may  possibly  be  lost,  or 
be  unavailable,  from  death  of  witnesses  or  other  cause,  or  when  the 
deed  given  on  a  sale  of  the  lands  for  the  tax  would,  by  statute,  be 
presumptive  evidence  of  a  good  title  in  the  purchaser,  so  that  the 
purchaser  might  rely  upon  that  for  a  recovery  of  the  lands  until  the 
illegalities  were  shown,  the  courts  of  equity  regard  the  case  as 
coming  within  their  ordinary  jurisdiction,  and  have  extended  relief 
on  the  ground  that  a  cloud  on  the  title  existed,  or  was  imminent." 
Cooley,  Tax'n  (ist  ed.),  pp.  542,  543.  Section  2937  of  the  Code  of 
1881,  in  force  at  the  time  of  the  payment  in  question,  in  reference 
to  tax  deeds  provided,  "Such  tax  deed,  duly  acknowledged  or  proven, 
is  (except  as  against  actual  fraud)  conclusive  evidence  of  the  regu- 
larity of  all  other  proceedings,  from  the  assessment  by  the  assessor, 
inclusive,  up  to  the  execution  of  the  deed."  In  this  case,  the  taxes 
paid  to  the  sheriff  were  not  invalid  because  of  any  illegality  appar- 
ent upon  the  tax  or  assessment  rolls,  but  becauce  of  the  fact  that 
technically  the  legal  title  was  still  in  the  United  States, — withheld 
solely  because  of  the  failure  to  deposit  the  cost  of  making  the  sur- 
vey. Hence,  as  a  matter  of  law,  it  could  not  have  been  ascertained 
from  an  examination  of  the  record  whether  the  taxes  were  valid  or 
otherwise.  Their  validity  depended  upon  whether  a  deposit  of  the 
cost  of  survey  had  in  fact  been  made.  Had  the  sale  which  was 
threatened  actually  occurred,  and  a  tax  deed  issued,  that  instrument, 
upon  its  face,  and  so  far  as  the  public  records  disclosed,  would  have 
been  valid,  and  appellant  would  have  been  obliged  to  resort  to  an 
action  to  remove  the  cloud  caused  by  an  instrument  apparently  valid, 
in  order  to  show  the  facts  which  rendered  it  invalid.  Under  such 
circumstances,  and  to  prevent  the  cloud  upon  his  title  which  the 
threatened  sale  would  have  created,  we  think  it  was  competent  for 
him  to  pay  the  taxes  to  the  sheriff  under  protest,  as  was  done,  and 
that  payment  under  such  circumstances  does  not  constitute  a  volun- 
tary payment. 


LINDSEY  V.  ALLEN,  Town  Treasurer,  et  al. 

19  R.  I.  721. — 1897. 

Per  Curiam. — This  is  an  action  to  recover  money  paid  for  a  tax, 
under  a  void  levy  on  the  plaintiff's  estate.  The  agreed  statement  of 
facts  shows  that  the  tax  was  assessed  against  Robert  E.  Wilcox, 
who  was,  at  the  time  of  the  assessment,  the  owner  of  the  real  estate 
on  which  it  was  assessed.  Subsequently  the  plaintiff  became  the 
purchaser  of  the  real  estate.    After  the  expiration  of  more  than  two 


RECOVERV    OF    TAXES    PAID.  573 

years  from  the  assessment,  when,  under  the  provisions  of  the  stat- 
ute, the  tax  had  ceased  to  be  a  Hen  on  the  real  estate,  the  collector 
levied  his  warrant  upon  it  for  the  collection  of  the  tax.  Thereupon 
the  plaintiff  paid  the  tax,  and  now  sues  to  recover  the  amount  paid. 

It  is  well  settled  that  a  payment  under  stress  of  legal  process  is 
compulsory,  and  if  unlawfully  exacted  may  be  recovered.  2  Desty 
on  Taxation.  795,  and  cases  cited.  Tn  Dunnell  v.  Newell,  15  R.  I. 
233,  this  court  held  that  the  mere  holding  by  a  collector  of  a  war- 
rant to  collect  a  tax  by  levy  or  distress  was  not  of  itself,  and  before 
any  step  was  taken  or  threat  of  enforcement  by  levy  or  distress, 
sufficient  to  make  a  payment  compulsory.  The  present  case  differs 
from  that  in  this — that  a  step  had  been  taken  against  the  plaintiff's 
property  by  a  levy  thereon.  The  only  remedy  which  the  plaintiff 
had,  therefore,  was  either  to  pay  the  tax  or  take  the  chance  of  de- 
feating the  sale  of  his  property  upon  the  ground  that  the  levy  was 
void.  In  our  opinion,  therefore,  the  payment  amounted  to  a  com- 
pulsory payment,  and  hence  the  plaintiff  on  this  ground  is  entitled 
to  recover  from  the  collector,  in  whose  hands  the  money  still  re- 
mains.    *     *     *     * 


Shaw,  C.  J.,  in  PRESTON  v.  CITY  OF  BOSTON. 
12  Pick.  (Mass.)  7.-1831. 

The  only  remaining  question  is,  whether  this  money  was  paid 
voluntarily  or  under  duress.  A  party  who  has  paid  voluntarily  under 
a  claim  of  right  shall  not  afterwards  recover  back  the  money, 
although  he  protested  at  the  time  against  his  liability.  The  reason 
of  this  is  obvious.  The  party  making  the  demand  may  know  the 
means  of  proving  it,  which  he  may  afterwards  lose ;  and  because 
another  course  would  put  it  in  the  power  of  the  other  party  to  choose 
his  own  time  and  opportunity  for  commencing  a  suit.  Brisbane  v. 
Dacres,  5  Taunt.  143.  But  it  is  otherwise  when  a  party  is  com- 
pelled by  duress  of  his  person  or  goods  to  pay  money  for  which  he 
is  not  liable ;  it  is  not  voluntary  but  compulsory,  and  he  may  rescue 
himself  from  such  duress  by  payment  of  the  money,  and  afterwards, 
on  proof  of  the  fact,  recover  it  back.  Astley  v.  Reynolds,  2  Str. 
916. 

What  shall  constitute  such  duress  is  often  made  a  question. 
Threat  of  a  distress  for  rent  is  not  such  duress,  because  the  party 
may  replevy  the  goods  distrained  and  try  the  question  of  liability 
at  law.  Knibbs  v.  Hall,  i  Esp.  84.  Threat  of  legal  process  is  not 
such  duress,  for  the  party  may  plead,  and  make  proof,  and  show  that 
he  is  not  liable.  Brown  v.  M'Kinally,  i  Esp.  279.  But  the  warrant 
to  a  collector,  under  our  statute  for  the  assessment  and  collection  of 
taxes,  is  in  the  nature  of  an  execution,  running  against  the  person 
and  property  of  the  party,  upon  which  he  has  no  day  in  court,  no 


^ 


574  COMPULSION    OF    LAW. 

opportunity  to  plead  and  offer  proof,  and  have  a  judicial  decision 
of  the  question  of  his  liability.  Where,  therefore,  a  party  not  liable 
to  taxation  is  called  on  peremptorily  to  pay  upon  such  a  warrant, 
and  he  can  save  himself  and  his  property  in  no  other  way  than  by 
paying  the  illegal  demand,  he  may  give  notice  that  he  so  pays  it  by 
duress  and  not  voluntarily,  and  by  showing  that  he  is  not  liable  re- 
cover it  back  as  money  had  and  received.  Amesbury  W.  &  C. 
Manuf.  Co.  v.  Amesbury,  17  Mass.  461. 

It  appears  by  the  facts  agreed  that  upon  the  first  notice  of  the  tax, 
the  plaintiff  applied  to  the  treasurer  and  collector,  setting  forth  his 
specific  ground  of  objection,  namely,  that  he  was  not  an  inhabitant 
and  not  liable  to  the  tax  on  personal  property.  The  plaintiff  was 
informed  by  the  collector  that  he  had  no  discretion  on  the  subject, 
and  unless  he  obtained  an  abatement  a  warrant  of  distress  would 
issue  against  him.  He  then  applied  to  the  city  government, 
stated  the  grounds  of  his  objection,  and  remonstrated  against  the 
tax ;  but  they  decided  that  the  tax  must  be  paid,  of  which  the  col- 
lector was  duly  informed.  The  law  under  which  the  treasurer  and 
collector  acted  obliged  him  to  issue  a  warrant,  under  which  the  per- 
son and  property  of  the  plaintiff  would  have  been  liable  to  be  taken, 
and  that  officer  had  notified  him  that  such  warrant  would  be  issued. 
Under  these  circumstances  the  money  was  paid,  and  we  think  it  can- 
not be  considered  as  a  voluntary  payment,  but  a  payment  made  under 
such  circumstances  of  constraint  and  compulsion,  and  with  such 
notice  on  his  part  that  it  was  so  paid,  that  on  showing  he  was  not 
liable  he  may  recover  it  back  in  this  action  from  the  defendants  into 
whose  treasury  it  has  gone. 

Defendants  defaulted. 


ATWELL  V.  ZELUFF. 
26  Mich.  118. — 1872. 

Campbell,  J. — Atwell  sued  Zeluff,  who  was  supervisor  of  the 
town  of  Ridgway,  Lenawee  county,  in  an  action  of  trespass,  the  cause 
of  action  being  the  issue  by  Zeluff  of  tax  rolls  for  the  collection  of 
ditch  taxes  against  Atwell,  one  of  which  he  paid  on  demand  of 
the  collector,  and  the  other  was  enforced  by  selling  his  personal 
property.  The  warrant  issued  to  the  collector  was  the  one  required 
by  law  for  the  regular  annual  taxes,  to  be  enforced,  in  case  of  non- 
payment, by  sale  of  chattels.  The  ditch  tax  was  extended  on  the 
general  tax  roll. 

In  regard  to  the  payment  made  without  levy  on  his  goods,  it  was 
objected  that  the  payment  being  without  protest,  was  voluntary. 
This  question  was  somewhat  discussed,  but  not  actually  decided, 
in  the  case  of  First  National  Rank  of  Sturgis  v.  Watkins,  21 
Mich.  R.  483.     Where  an  officer  demands  a  sum  of  monev  under  a 


RECOVERY   OF   TAXES    PAID.  575 

warrant  directinj:;-  him  to  enforce  it,  the  party  of  whom  he  demands 
it  may  fairly  assume  that  if  he  seeks  to  act  under  the  jjroccss  at  all, 
he  will  make  it  effectual.  The  demand  itself  is  equivalent  to  a  serv- 
ice of  the  writ  on  the  person.  Any  payment  is  to  be  regarded  as 
involuntary  which  is  made  under  a  claim  involving  the  use  of  force 
as  an  alternative,  as  the  party  of  whom  it  is  demanded  cannot  be 
compelled  or  expected  to  await  actual  force,  and  cannot  be  held  to 
expect  that  an  officer  will  desist  after  once  making  demand.  The 
exhibition  of  a  warrant  directing  forcible  proceedings,  and  the  re- 
ceipt of  money  thereon,  will  be  in  such  case  equivalent  to  actual 
compulsion. 

There  has  been  some  confusion  among  the  authorities  as  to  the  ne- 
cessity or  effect  of  a  protest  in  svich  cases,  but  the  question  has  not 
often  arisen  upon  the  service  of  legal  process.  In  some  cases  it  has 
been  intimated  that  it  might  be  necessary,  in  order  to  recover  back 
a  payment  from  the  person  to  whom  it  was  actually  paid,  after  he 
had  paid  over  the  money  under  his  agency.  But  where  the  person 
demanding  and  receiving  the  money,  does  so  under  color  of  process, 
as  a  legal  officer,  we  think  the  payment  must  be  deemed  involuntary, 
because  the  party  paying  has  no  legal  means,  by  appeal  or  otherwise, 
of  preventing  the  seizure  of  his  property.  If  he  has  such  means  of 
redress,  which  would  be  effectual  to  stay  the  process,  there  is  reason 
for  making  the  distinction  which  may,  perhaps,  be  sustained.  The 
supreme  court  of  Massachusetts,  in  Boston  &  Sandwich  Glass  Co.  v. 
City  of  Boston,  4  Met.  181,  citing  a  former  case  in  17  Mass.  461,  re- 
fer to  the  absolute  character  of  the  warrant  as  excusing  the  necessity 
of  a  protest.  But  we  think  the  rule  of  damages  there  adopted  as  to  the 
difference  of  liability  where  there  is  and  where  there  is  not  a  protest, 
is  also  based  on  good  sense.  Where  the  money  is  not  paid  under 
protest,  it  is  there  held  that  no  interest  should  be  allowed  until  de- 
mand or  action  brought,  so  as  to  put  the  party  sued  in  actual  fault 
for  not  making  satisfaction  as  soon  as  the  wrong  is  pressed  upon  his 
notice.  A  payment  without  protest  may  prevent  him  from  making 
inquiry  and  examining  into  the  law,  and  while  legal  ignorance  will 
not  excuse  an  illegal  demand,  it  may  very  properly  qualify  the  extent 
of  damages  for  a  merely  technical  wrong.     *     *     *     * 

Judgment  must  be  reversed,  and  a  new  judgment  must  be  entered 
for  plaintiff,  on  the  finding,  for  the  amount  of  the  illegal  exactions, 
with  interest  from  suit  brought,  and  with  costs  of  all  the  courts. 

There  are  such  practical  hardships  in  permitting  persons  to  be  held 
liable  to  action,  where  no  distinct  protest  is  made,  pointing  out  rea- 
sons why  a  collector  should  withhold  action  under  his  warrant,  that 
it  is  a  proper  subject  for  legislative  consideration,  whether  some  pro- 
vision should  not  be  made  to  regulate  the  matter.  The  officers  can 
seldom  be  expected  to  understand  the  niceties  of  the  law,  and  it  is  not 
desirable  that  persons  should  be  deterred  from  holding  the  necessary 
local  offices  by  fear  of  consequences  for  which  they  are  not  morally 
responsible. 

The  other  Justices  concurred. 


576  COMPULSION    OF    LAW. 

Lyon,  J.,  in  PARCHER  v.  MARATHON  COUNTY. 

52  Wis.  388.— 1881. 

We  think  it  must  be  held,  on  principle  and  authority,  that  the 
payment  of  a  demand  under  compulsion  of  legal  process,  such  pay- 
ment being  accompanied  by  a  protest  that  the  demand  is  illegal  and 
that  the  payer  intends  to  take  measures  to  recover  back  the  money 
paid,  is  not  a  voluntary  payment.  And  further,  to  constitute  com- 
pulsion of  legal  process  it  is  not  essential  that  the  officer  has  seized, 
or  is  immediately  about  to  seize,  the  property  of  the  payer  by  virtue 
of  his  process.  It  is  sufficient  if  the  officer  demands  payment  by  vir- 
tue thereof,  and  manifests  an  intention  to  enforce  collection  by  seiz- 
ure and  sale  of  the  payer's  property  at  any  time.  On  the  general 
question  v^e  are  considering,  numerous  authorities  are  cited  in 
Cooley  on  Taxation,  in  the  notes  on  pages  568-571.  The  case  of 
Powell  V.  Sup'rs  of  St.  Croix  Co.,  46  Wis.  210,  is  an  illustration  of 
what  constitutes  a  voluntary  payment.  It  follows,  from  the  views 
above  expressed,  that  when  the  learned  circuit  judge  instructed  the 
jury  that  unless,  when  the  tax  was  paid,  the  sheriff  had  the  present 
intention  and  purpose  to  seize  the  plaintiff's  goods  then  and  there, 
the  plaintiffs  could  not  recover,  and  that  an  intention  to  seize  at  a 
future  day  was  not  sufficient,  he  laid  down  a  limitation  of  the  liabil- 
ity of  the  defendant  which  the  law  does  not  sanction. 

For  this  error  the  judgment  must  be  reversed,  and  the  cause  re- 
manded for  a  new  trial. 


RUMFORD  CHEMICAL  WORKS  v.  RAY,  Town  Treasurer. 

19  R.  I.  456. — 1896. 

Matteson,  C.  J. — *  *  *  *  The  facts  appear  as  follows :  On 
October  19,  1894,  the  assessors,  having  completed  the  assessment, 
dated,  signed,  and  deposited  it  in  the  town  clerk's  office.  The  town 
clerk  thereupon  made  a  copy  of  it,  and  delivered  the  copy  to  the 
town  treasurer.  The  town  treasurer  on  October  27,  1894,  issued 
and  affixed  to  the  copy  a  warrant,  under  his  hand,  directed  to  George 
F.  Hunter,  the  collector  of  taxes  of  the  town,  commanding  him  to 
proceed  to  collect  the  several  sums  of  money  expressed  in  the  copy, 
of  the  persons  and  estates  liable  therefor,  on  or  before  the  ist  day 
of  June,  1895,  with  interest  at  the  rate  of  6  per  cent,  per  annum 
from  and  after  November  30,  1894,  in  case  the  same  were  not  paid 
on  or  before  November  30,  1894.  Among  the  sums  expressed  in 
the  copy  of  the  assessment  was  the  tax  illegally  assessed  against  the 
plaintiff.  The  collector,  on  the  same  day  that  the  warrant  was 
issued  to  him,  to-wit,  October  27,  1894,  gave  notice  to  the  taxpayers 


RECOVERY   OF   TAXES    PAID.  577 

of  the  levy  and  assessment  of  the  tax,  and  requested  them  to  pay  the 
sums  assessed  on  or  before  November  30,  1894;  that  interest  at  the 
rate  specified  would  be  charged  on  all  taxes  not  paid  within  the 
time  limited  in  the  warrant ;  and  that,  in  com.pliance  with  the  vote 
of  the  town,  all  taxes  not  paid  on  or  before  June  i,  1895,  would  be 
collected  according  to  law.  On  November  28,  1894,  the  plaintiff 
paid  the  tax  assessed  against  it,  accompanying  the  payment  by  a 
written  protest  in  the  following  form :  "To  the  Town  Treasurer  and 
Collector  of  Taxes  of  the  Town  of  East  Providence :  The  under- 
signed, the  Rumford  Chemical  Works,  herewith  pays  the  tax  assessed 
on  its  personal  property,  amounting  to  the  sum  of  eight  thousand 
four  hundred  dollars  ($8,400),  under  protest ;  claiming  that  the  same 
was  improperly,  wrongfully,  and  illegally  assessed  against  it,  and 
reserving  the  right  to  bring  suit  against  the  town  of  East  Providence 
to  recover  the  same,  with  interest  thereon.  Rumford  Chemical 
Works,  by  N.  D.  Arnold,  Treas.     East  Providence,  November  28, 

1894." 

The  defendant  contends  that  the  plaintiff  is  not  entitled  to  recover, 
because  the  payment  is  to  be  deemed  a  voluntary  payment,  since  it 
was  made  with  a  full  knowledge  of  the  facts  which  render  it  illegal, 
and  without  any  immediate  or  urgent  necessity, — no  proceeding  hav- 
ing been  taken  by  the  collector  for  the  collection  of  the  tax,  and 
notice  having  been  given  by  him  that  he  would  take  no  such  proceed- 
ings until  after  June  i,  1895  ;  that  the  fact  that  the  payment  was  ac- 
companied by  a  protest  did  not  render  it  any  the  less  a  voluntary  pay- 
ment. 

There  is  considerable  diversity  of  opinion  on  the  subject  of 
the  recovery  of  moneys  paid  for  taxes  illegally  assessed.  The  cases 
turn  on  the  question  whether,  in  the  particular  circumstances  of  the 
case,  the  payment  was  to  be  regarded  as  voluntary  or  involuntary ; 
some  courts  holding  that  unless  a  payment  be  made  under  an  imme- 
diate or  urgent  necessity,  i.  e.,  to  avoid  an  actual  or  threatened 
seizure  or  sale  of  one's  goods,  the  payment  is  voluntary,  and  cannot 
be  recovered,  even  if  made  under  protest.  Others  hold  that  when  a 
warrant  is  in  the  hands  of  a  collector,  which  authorizes  him  to  levy 
upon  and  sell  the  property  of  the  delinquent  taxpayer, — such  war- 
rant being  in  the  nature  of  an  execution,  and  there  being  no  means 
for  testing  the  validity  of  the  tax, — a  person  illegally  taxed  may 
pay  the  tax  under  protest,  and  that  the  payment  so  made  is  not  a 
voluntary  payment,  in  such  sense  as  to  prevent  its  recovery.  This 
was  the  view  adopted  by  us  after  due  consideration,  in  Manufacturing 
Co.  v.  Newell,  15  R.  I.  233,  238,  2  Atl.  766.  In  addition  to  cases 
cited  in  that  opinion  on  this  point,  reference  may  also  be  had  to 
Allen  V.  Burlington,  45  Vt.  202,  213,  214;  Atwell  v.  Zeluff,  26  Mich. 
118;  North  Carolina  R.  Co.  v.  Commissioners  of  Alamance,  yj  N. 
C.  4;  Galveston  Gaslight  Co.  v.  Galveston  Co.,  54  Tex.  287,  292, 
293;  Bright  V.  Halloman,  7  Lea  309,  312.  The  origin  of  the  doc- 
Woodruff's  Cases — 37 


5/8  COMPULSION    OF    LAW. 

trine  of  "immediate  and  urgent"  necessity  seems  to  have  been  the 
dictum  of  Lord  Kenyon  in  Fulham  v.  Down,  6  Esp.  26,  "that  where 
a  voluntary  payment  was  made  of  an  illegal  demand,  the  party  know- 
ing the  demand  to  be  illegal,  without  an  immediate  and  urgent 
necessity  (or,  as  expressed  by  Mr.  Bearcroft,  unless  to  redeem  or 
preserve  your  person  or  goods),  it  is  not  the  subject  of  an  action 
for  money  had  and  received."  The  phrase  "immediate  and  urgent 
necessity,"  as  stated  in  Baker  v.  City  of  Cincinnati,  ii  Ohio  St.  534, 
538,  is  certainly  indefinite.  It  seems  to  us  to  have  been  pressed  to  an 
unwarrantable  length  by  the  cases  which  hold  that  nothing  less  than 
an  actual  or  threatened  seizure  of  goods  will  render  a  payment  invol- 
untary, and  that  a  payment  under  protest,  unless  made  in  case  of 
an  actual  or  threatened  seizure,  is  to  be  treated  as  a  voluntary  pay- 
ment. The  parenthetical  illustration  thrown  in  by  Lord  Kenyon,  in 
explanation  of  the  phrase,  as  its  equivalent,  is,  "unless  to  redeem  or 
preserve  your  person  or  goods."  Payment  to  avoid  the  levy  of  a 
warrant  already  issued  and  in  the  hands  of  the  collector,  and  just 
as  sure  to  be  levied,  if  the  money  is  not  paid,  as  night  to  follow  day, 
is  just  as  much  a  payment  to  preserve  one's  goods  as  though  the 
levy  had  actually  been  threatened  or  made.  A  voluntary  payment 
implies  that  the  man  who  makes  it  intends  to  waive  any  right  which 
he  may  have  to  resist  it.  When  he  gives  notice  by  his  protest  that 
he  does  not  waive  his  right,  but  intends  to  insist  upon  it,  such  impli-. 
cation  is  negatived.  Chief  Justice  Tindal,  in  Valpey  v.  Manning,  i 
Man.  G.  &  S.  594,  603,  after  quoting  the  dictum  of  Lord  Kenyon, 
adds :  "I  am  not  aware  that  there  is  any  difficulty  or  impropriety  in 
laying  it  down  that  where  money  is  voluntarily  paid,  with  full  knowl- 
edge of  all  the  circumstances,///^  party  intending  to  give  up  his  right, 
he  cannot  afterwards  bring  an  action  for  money  had  and  received ; 
but  that  it  is  otherwise  where,  at  the  time  of  paying  the  money,  the 
party  gives  notice  that  he  intends  to  resist  the  claim,  and  that  he 
yields  to  it  merely  for  the  purpose  of  relieving  himself  from  the 
inconvenience  of  having  his  goods  sold."  We  see  no  reason  to  de- 
part from  the  decision  in  Manufacturing  Co.  v.  Newell.  The  rule 
there  adopted  seems  to  us  sensible  and  just.  It  is  easy  of  applica- 
tion, and  productive  of  as  little  inconvenience  and  hardship  to  the 
parties  as  is  practicable.  By  the  protest,  the  collector,  and  through 
him  the  town  authorities,  are  notified  that  the  tax  is  not  paid  in  the 
ordinary  course  of  business,  that  its  legality  is  disputed,  and  that 
suit  is  to  be  instituted  to  test  its  validity.  The  town  receives  the 
money,  which  may  be  needed  for  its  immediate  necessities.  Both  the 
town  and  the  taxpayer  are  saved  the  expense  of  unnecessary  pro- 
ceedings. The  controversy  is  determined  by  the  court,  and  the  money 
retained  or  refunded  according  to  the  decision  of  the  court. 

The  defendant  also  makes  the  point  that  the  protest  is  not  suffi- 
cient because  it  docs  not  specify  the  alleged  illegality,  and  supports 
it  by  reference  to  a  criticism  in  passing  by  the  court  upon  a  similar 
protest  in  Railroad  Co.  v.  Commissioners,  98  U.  ?.  541.     We  see 


WAIVER   OF   TORT.  579 

no  reason  for  requiring  a  specification  in  the  protest  of  the  alleged 
illegality.  All  the  facts  connected  with  the  assessment  are  certainly 
as  fully  known  to  the  assessors  as  to  the  taxpayer,  and  they  are  in  as 
good  a  position  as  he  is  to  know  whether  the  tax  is  legal  or  illegal 
Mason  v.  Johnson,  51  Cal.  612.  Judgment  for  the  plaintiff  for  its 
claim  and  costs. ^ 


3.    WAIVER  OF  TORT. 

a.  In   General. 

CROW  V.  BOYD'S  ADMINISTRATORS. 

17  Ala.  51. — 1849. 

Assumpsit. 

Dargan,  C.  J. — The  facts  of  this  case,  so  far  as  they  are  material 
to  the  question  raised  by  the  bill  of  exceptions,  are  these :  The  plain- 
tiff recovered  in  an  action  of  detinue  against  one  R,  C.  Boyd,  a  slave, 
and  also  damages  for  his  detention.  The  slave  was  delivered  up  to 
the  plaintiff  in  satisfaction  of  his  value,  as  assessed  by  the  jury,  but 
the  damages  for  the  detention  have  not  been  paid,  and  the  estate  of 
R.  C.  Boyd,  against  whom  the  recovery  was  had,  is  insolvent.  After 
the  institution  of  the  suit  in  detinue,  the  slave  performed  service 
for  the  defendant's  intestate,  in  whose  possession  he  remained  for 
about  two  years ;  but  it  does  not  distinctly  appear  under  what  cir- 
cumstances the  slave  went  into  his  possession,  but  it  is  manifest  that 
it  was  not  by  virtue  of  any  contract  with  the  plaintiff,  nor  with  his 
assent. 

The  question  arising  out  of  the  facts  is,  whether  assumpsit  will 
lie  in  favor  of  the  plaintiff  against  the  defendants  to  recover  the 
value  of  the  services  or  labor  of  the  slave  during  the  time  he  was 
in  the  possession  of  their  intestate.  It  is  contended  that  inasmuch  as 
the  defendants'  intestate  was  liable  to  an  action  of  trover  or  detinue 
because  he  had  the  possession  of  the  slave,  employing  him  as  his 
own  property,  that  the  plaintiff  may  waive  the  tort  and  sue  in 
assumpsit  for  the  value  of  his  labor.  The  action  of  assumpsit  can 
be  maintained  only  upon  a  contract,  expressed  or  implied  by  law, 
and  it  will  not  lie  to  recover  damages  for  torts  or  trespasses.     It  is 

^  Statutory  Remedies. — For  a  discussion  of  remedies  provided  bj'^  statute 
for  illegal  taxation  and  the  recovery  of  money  paid  thereon,  see  Lauman  v. 
County  of  Des  Moines,  29  la.  310  (1870)  ;  Lincoln  v.  City  of  Worcester,  8 
Cush.  (Mass.)  55  (1851);  Matter  of  Adams,  154  N.  Y.  619  (1898);  Matter 
of  McCne,  162  N.  Y.  235   (1900). 

Recovery  from  a  Purchaser  at  a  Tax  Sale.^Ih  Anderson  v.  Cameron, 
122  la.  183  (1904),  it  is  held  that  a  purchaser  at  a  sale  for  a  void  tax,  without 
notice  of  the  invalidity,  may  retain,  as  against  the  owner,  money  paid  by  the 
latter  to  the  city  for  redemption,  and,  by  the  city,  paid  to  the  purchaser. 


580  WAIVER   OF   TORT. 

true  that  if  one  convert  the  goods  of  another  to  his  own  use,  and 
afterwards  sell  them  and  receive  the  money,  an  action  for  money 
had  and  received  will  lie  against  him  at  the  suit  of  the  owner.  Up- 
church  v.  Norsworthy,  15  Ala.  705.  But  the  extent  of  this  rule  of 
waiving  torts  and  bringing  assumpsit  is  confined  to  this :  If  the 
wrongdoer  has  sold  the  goods  and  received  the  money,  the  owner 
may  elect  to  affirm  the  sale  and  to  claim  the  price  at  which  they 
were  sold.  His  title  to  the  goods  entitles  him  to  the  price  received 
for  them,  and  thus  the  wrongdoer  is  considered  as  having  received 
the  money  for  the  use  of  the  owner.  But  if  there  has  been  a  mere 
conversion  of  the  goods,  without  any  sale  of  them,  assumpsit  will 
not  lie  to  recover  their  value.  Jones  v.  Hoar,  5  Pick.  285 ;  Wellit  v. 
Wellit,3  Watts  277 ;  Pritchard  v.  Ford,  i  J.  J.  Marshall  543  ;  Sanders 
V.  Hamilton,  3  Dana  552.  I  admit  that  cases  may  be  found  which 
hold  that  the  owner  may  waive  the  tort  and  recover  the  value  of  the 
goods  in  an  action  of  assumpsit,  although  the  wrong-doer  may  not 
have  sold  them.  But  when  we  reflect  that  the  action  of  assumpsit 
will  lie  only  upon  a  promise  express  or  implied,  and  not  to  recover 
damages  for  torts  or  trespasses,  we  do  not  see  upon  what  principle 
these  decisions  can  be  sustained.  We  must  hold  (if  we  sanction 
them)  the  broad  principle  that  trover  and  assumpsit  are  concurrent 
remedies  in  all  cases  for  the  tortious  conversion  of  the  goods  of  an- 
other. This  would  be  opposed  to  the  first  principles  of  pleading.  The 
defendant  is  liable  in  an  action  of  trover  for  the  value  of  the  services 
of  the  slave,  but  as  it  does  not  appear  that  he  actually  received  any 
money  for  his  labor  (which  might  entitle  the  plaintiff  to  maintain 
assumpsit  for  money  had  and  received)  he  can  not  be  made  liable  in 
this  form  of  action.  Let  the  judgment  be  affirmed.^ 

*In  Jones  v.  Hoar,  5  Pick.  (Mass.)  285  (1827),  the  court  says  (p.  290): 
"The  whole  extent  of  the  doctrine,  as  gathered  from  the  books,  seems  to  be, 
that  one  whose  goods  have  been  taken  from  him  or  detained  unlawfully, 
whereby  he  has  a  right  to  an  action  of  trespass  or  trover,  may,  if  the  wrong- 
doer sell  the  goods  and  receive  the  money,  waive  the  tort,  affirm  the  sale, 
and  have  an  action  for  money  had  and  received  for  the  proceeds.  See 
Gilmore  v.  Wilbur,  12  Pick.  124;  i  Chitty  on  PI.  (6th  Amer.  ed.),  113,  114. 
No  case  can  be  shown  where  assumpsit  as  for  goods  sold  lay  in  such  case, 
except  it  be  against  the  executor  of  the  wrongdoer,  the  tort  being  extinguished 
l)y  the  death,  and  no  other  remedy  but  assumpsit  against  the  executor  remain- 
ing.   Such  was  the  case  of  Hambly  v.  Trott  [Cowp.  371]." 

In  Finlay  v.  Bryson,  84  Mo.  664  (1884),  the  court  says  (p.  670)  :  "It  is 
argued  by  the  plaintiff,  that  since  it  appears  that  the  defendant,  in  his  con- 
version of  the  property,  sold  it  and  received  the  proceeds  of  the  sale  in 
money,  the  plaintiff  is  at  liberty  to  waive  the  tort  and  sue  him  in  assumpsit 
for  money  had  and  received.  This  right  of  election  is  very  generally  con- 
ceded to  the  plaintiff  1)y  the  authorities,  where  his  sole  purpose  is  to  main- 
tain an  assumpsit.  So  far  as  the  defendant  is  concerned  this  right  rests 
upon  a  fiction  imposed  at  the  i)laintiff's  pleasure  upon  the  actual  facts  of 
misconduct  of  the  defendant,  which  discloses  no  elements  of  a  promise,  con- 
tract or  agreement.  But  when  the  gravamen  of  the  transaction  sounds  in 
tort,  the  plaintiff  will  not  be  indulged  in  this  fiction,  if  the  effect  of  it  is  to 
give  jurisdiction  over  the  subject  matter  to  a  court  which  otherwise  would 
not  possess  it.     Sandeen  v.  R.  R.,  79  Mo.  278;  or  to  bring  the  case  within 


1 


IN    GENERAL.  'S^lJ 

KIDNEY  V.  PERSONS. 

41  Vt.  386.-1868.  ^      -    ->-  C^  -—    1    ' 


Prout,  J. — This  is  an  action  of  assumpsit,  the  declaration  contain- 
ing only  the  common  counts.  The  question  is  whether  the  defendant 
is  Hable  on  the  facts,  as  upon  an  imphed  promise  to  pay  for  the  watch 
in  controversy.  The  exceptions  contain  a  meager  statement  of  the 
case,  disclosing  merely  that  the  plaintiff  pawned  or  "pledged  the 
watch  to  secure  the  payment  of  a  debt  he  was  owing ;  that  the  de- 
fendant obtained  the  possession  of  it  in  right  of  the  pawnee  or 
pledgee,  and  sold  it  before  he  had  a  right  for  a  harness,  receiving  no 
money  in  fact  for  either.  Upon  these  facts,  on  the  defendant's  objec- 
tion, the  county  court  held  that  the  plaintiff  could  not  recover. 
Under  this  ruling  the  plaintiff  became  nonsuit  with  liberty  to  except. 

Although  the  watch  may  not  have  been  wrongfully  taken  by  the 
defendant,  he  acquiring  the  possession  in  right  of  the  creditor  having 
a  lien  upon  it,  yet  he  wrongfully  misappropriated  or  converted  it  by 
selling  it,  as  if  he  was  the  absolute  owner,  for  a  harness.  From  the 
condition  of  the  title  and  nature  of  the  lien  upon  the  watch,  the  de- 
fendant could  acquire  only  the  right  and  interest  of  the  creditor  or 
pawnee,  who,  as  the  case  finds,  had  no  right  to  sell  it  at  the  time  it 
was  sold,  and  thus  defeat  the  plaintiff's  right  to  a  return  of  the  spe- 
cific article  on  payment  of  the  claim  for  which  it  was  pledged.  It  was 
held  subject  to  this  right  as  well  as  for  purposes  of  security,  and  the 
relation  of  the  parties  in  respect  to  the  pledge  was  that  of  bailor  and 
bailee  in  some  sense.  The  pledgee  or  bailee  having  no  right  to  sell 
the  watch,  as  the  case  finds  he  did,  the  general  owner  may  maintain 
trover,  and  in  that  action  recover  according  to  the  value  of  his  in- 
terest in  the  article,  as  the  sale  was  wrongful  and  tortious.  Sedg- 
wick on  Damages,  482;  Jarvis  v.  Rogers,  15  Mass.  388;  Stearns  v. 
Marsh,  4  Denio  227 ;  Morrill  v.  Moulton,  40  Vt.  242. 

This  is  apparent  from  the  facts  as  well  as  the  nature  of  the  legal 
remedy  adapted  to  the  injury,  and  which  is  open  to  the  plaintiff.  He 
puts  his  case  upon  this  ground.  The  defendant  claims  that  he  acted 
upon  a  supposed  right  (which  does  not  appear,  and  which,  if  it  did, 
cannot  affect  the  question)  to  treat  the  watch  as  his  own  property, 
and  that  he  was  not  a  tortfeasor.  The  case  then  comes  to  the  ques- 
tion suggested  by  Bennett,  J.,  in  Stearns  v.  Dillingham,  22  Vt.  624, 
whether  the  plaintiff  "can  of  his  own  mere  motion  waive  the  tort  and 
sue  in  assumpsit"  for  the  watch.  Upon  this  question  we  do  not  ques- 
tion the  general  rule,  that  the  owner  of  property  wrongfully  con- 
verted into  money,  may  waive  the  tort  and  seek  his  remedy  in  as- 
sumpsit. This  is  settled  in  numerous  cases.  The  principle  rests  upon 
the  ground  of  a  subsequent  implied  assent  of  the  parties  "to  treat  the 

the  terms  of  the  statute,  which  otherwise  would  not  include  it.     Miss.  Cent. 
R.  R.  V.  Fort,  44  Miss.  423." 


582  WAIVER   OF   TORT. 

matter  as  resting  in  contract,  which  has  relation  to  the  time  the  goods 
or  property  was  taken  and  wrongfully  converted,  and  in  legal  effect 
amounts  to  a  sale  at  the  request  of  the  defendant."  Stearns  v.  Dilling- 
ham, supra.  But  there  must  be  a  conversion,  of  the  property  into 
money  or  its  equivalent.  What  then  is  money  had  and  received  or 
its  equivalent  in  a  legal  sense?  A  solution  of  this  question  deter- 
mines the  case,  and  it  is  determined  mainly  by  adjudicated  cases. 

The  earliest  case  reported  in  this  state  that  has  come  to  our  notice 
relating  to  that  subject  is  Burnap  v.  Partridge,  3  Vt.  144.  That  was 
an  action  of  assumpsit,  and  stood  for  determination  upon  the  counts 
for  money  had  and  received.  Williams,  late  C.  J.,  gave  the  opinion, 
and  in  the  course  of  it  he  remarks :  "To  support  an  action  for  money 
had  and  received,  it  must  in  all  cases  be  made  to  appear  that  the  de- 
fendant has  actually  received  money  to  the  use  of  the  plaintiff,  or 
that  he  has  received  that  which  he  considered  as  equivalent  thereto 
and  accounted  for  it  as  such."  Again,  "the  receipt  of  the  money  may 
sometimes  be  presumed.  Thus  when  other  property  has  been  re- 
ceived which  is  salable,  if  it  is  not  otherwise  accounted  for,  the  re- 
ceipt of  the  money  for  the  value  of  it  may  be  presumed.  *  *  * 
It  is  only  declaring  what  may  be  evidence  of  this  receipt."  It  is  ob- 
vious from  this  language  that  the  judge  in  stating  the  qualification 
of  the  general  rule  he  has  laid  down,  and  which  he  takes  occasion  to 
say  "does  not  militate  against  the  principle,  that  money  must  actually 
have  been  received,"  refers  to  a  matter  of  fact  and  not  of  law  as 
the  test.  In  the  case  put  of  the  receipt  of  money  or  its  equivalent,  to 
charge  the  party  on  the  latter  ground,  it  must  appear  that  he  received 
that  which  was  considered  as  equivalent  to  money  and  accounted  for 
it  as  such.  What  is  remarked  by  the  same  learned  judge  in  Flower 
Brook  Manufacturing  Co.  v.  Buck,  18  Vt.  238,  is  entirely  consistent 
with  this  view.  The  controversy  in  that  case,  which  was  an  action 
on  book,  was  in  relation  to  some  cloth  manufactured  by  the  plaintiff 
from  wool  furnished  by  the  defendant,  and  for  him,  but  which  the 
plaintiff  had  not  delivered.  The  judge  says  "the  creditor  was  correct 
in  his  view  of  the  case.  The  cloth  was  demanded  and  was  not  deliv- 
ered ;  it  has  not  been  offered  to  the  defendant,  and  there  is  no  evi- 
dence that  the  plaintiff  had  it  on  hand,  set  apart  and  designated  for 
him.  The  auditor  therefore  might  with  propriety  consider  that  the 
plaintiffs  had  appropriated  the  ai'ails  of  the  cloth  to  their  own  use, 
either  by  sale  or  otherwise,  and  held  them  accountable"  for  the  value 
or  avails  of  the  same,  and  upon  this  ground  of  inference  of  fact  the 
court  make  the  plaintiffs  accountable.  The  question  was  again  be- 
fore the  court  in  Scott  v.  Lance,  21  Vt,  507,  which  was  also  an  action 
on  book.  The  items  in  dispute  in  that  case  were  several  charges  for 
manure.  The  defendant  had  given  the  plaintiff  permission  to  draw 
away  six  loads  and  no  more,  but  more  were  drawn  away  without 
consent  or  permission,  as  the  case  finds,  under  a  pretended  claim  of 
right  to  it  by  the  plaintiff  as  his  own  property.  The  auditor  found 
the  plaintiff's  claim  to  it  unfounded,  and  the  question  was  whether 
the  defendant  could  be  allowed  in  that  action  for  the  manure  thus 


IN    GENERAL.  583 

taken  by  the  plaintiff.  Upon  the  question  the  comments  of  Poland, 
].,  who  gave  the  opinion,  are  to  the  purpose.  He  says  the  plaintiff's 
act  seems  to  have  been  a  direct  tort,  "for  which  the  defendant's  ap- 
propriate legal  remedy  would  have  been  an  action  of  trespass  or 
trover."  In  that  case  it  was  urged,  as  in  this,  that  it  was  permissible 
for  the  defendant  to  waive  the  tort  and  recover  on  an  implied  prom- 
ise, but  he  says ;  "We  do  not  understand  this  doctrine  of  waiving 
torts  and  suing  in  assumpsit  ever  to  have  been  carried  to  this  extent 
in  this  state.  The  farthest  it  has  gone,  has  been,  to  allow  the  owner 
of  property,  which  has  been  tortiously  taken  and  converted  into  mon- 
ey, to  maintain  assumpsit  for  money  had  and  received,  against  the 
wrongdoer ;  and  this  is  founded  mainly,  as  we  think,  upon  the  equita- 
ble ground  which  is  said  to  be  the  foundation  of  that  action,  "that  the 
defendant  has  money  in  his  hands,  which  in  equity  belongs  to  the 
plaintiff.  To  carry  the  doctrine  to  the  extent  claimed  would  abolish 
all  distinction  between  actions  ex  delicto  and  ex  contractu,  and  we 
do  not  see  any  necessity  for  so  wide  a  departure  from  what  we  deem 
to  be  the  settled  law  on  the  subject."  This  case  is  followed  by  Stearns 
v.  Dillingham,  supra,  in  which  Bennett,  J.,  says  the  law  is  too  well 
settled  to  admit  of  discussion,  and  states  the  general  rule  in  nearly 
the  same  terms,  and  so  does  Redfield,  C.  J.,  in  Phelps  et  al.  v. 
Conant  et  al.,  30  Vt,  277,  and  Aldis,  J.,  in  Elwell  v.  Martin  and 
Trustee,  32  Vt.  217.  The  question  was  again  before  the  court,  as  in- 
volved in  the  action  on  book  in  Drury  v.  Douglass,  35  Vt.  474. 
The  struggle  in  that  case  related  to  some  money  delivered  the  de- 
fendant by  the  plaintiff'  to  carry  to  another  but  which  he  did  not. 
Alois,  J.,  who  gave  the  opinion,  says  the  neglect  or  refusal  to  carry 
was  a  tort  pure  and  simple.  To  hold  that  he  could  recover  it  on  book 
"would  be  going  quite  beyond  precedents  (and  they  have  gone  quite 
as  far  in  this  direction  as  it  is  wise  and  safe  to  go)  and  would  break 
down  the  distinction  between  forms  of  actions,  between  torts  and 
contracts ;  a  distinction  existing  in  the  relation  of  things,  as  well  as 
in  the  artificial  rules  of  pleading."  This  reasoning  applies  with  equal 
pertinency  and  force  in  the  present  case,  as  there  is  no  more  reason 
why  the  distinction  alluded  to  should  be  disregarded  in  the  action 
of  general  assumpsit  than  in  the  action  on  book,  the  ground  of  re- 
covery in  both  being  ex  contractu.  See,  also,  Gilmore  et  al.  v.  Wilbur 
et  al.,  12  Pick.  120. 

The  doubt  in  relation  to  the  question  arises  from  the  indefinite 
language  used  in  expressing  the  rule  found  in  the  cases.  As  ex- 
pressed, it  is,  that  money  or  its  equivalent  must  have  been  received 
by  the  defendant  in  order  to  maintain  the  action.  But  another  class 
of  cases  often  before  the  court  indicate  the  sense  and  application  of 
this  language.  When  a  party  has  received  a  promissorv  note  or  ne- 
gotiable paper  for  property  wrongfully  taken  and  converted,  or  when 
property  has  been  received  in  satisfaction  of  a  money  demand,  in  a 
legal  sense  it  is  equivalent  to  money :  as  ilkistrated  in  cases  arising  in 
favor  of  sureties  against  their  principals,  or  as  between  co-sureties 
to  compel  a  contribution.    And  when  property  has  been  disposed  of 


584  WAIVER   OF   TORT. 

at  a  fixed  price,  or  was  purchased  for  the  purpose  of  selhng  again, 
and  a  sufficient  time  has  elapsed  to  accompHsh  that  purpose  and  it 
is  not  otherwise  accounted  for,  it  might  perhaps  be  treated  as  equiva- 
lent to  money,  Shepard  v.  Palmer,  6  Conn.  94;  2  Greenleaf  Ev., 
§  118.  But  these  cases  stand  upon  ground  peculiar  to  their  special 
facts,  and  are  rather  exceptional  than  otherwise.  The  present  case 
does  not  fall  within  the  principle  of  that  class  of  cases,  but  standing 
upon  its  naked  facts,  unaided  by  any  pretense  or  inference  that  the 
defendant  has  received  money  for  the  watch,  or  that  its  sale  for  the 
harness  was  considered  by  the  parties  as  resting  in  contract  or  con- 
sent, the  judgment  of  the  county  court  should  be  affirmed.^ 


WARE  V.  PERCIVAL  et  al. 
61   Me.  391.— 1873. 

Appleton,  C.  J. — This  is  an  action  of  trespass  for  unlawfully  tak- 
ing and  carrying  away  certain  shares  of  the  capital  stock  of  the 
Maine  Central  Railroad  Company,  the  property  of  the  plaintiff. 

The  defendants  are  assessors  of  the  town  of  Waterville.  The 
plaintifif  was  assessed  by  them  as  one  of  its  inhabitants.  Not  being 
one,  the  assessors  had  no  jurisdiction.  A  warrant  was  issued  in  due 
form  of  law  to  the  collector  of  said  town,  who"  seized  and  sold  the 
stock  in  controversy,  and  paid  over  the  proceeds  of  such  sale  to  its 
treasurer.  The  property  of  the  plaintiff  having  been  seized  and  sold 
to  pay  an  illegal  assessment,  the  assessors  having  no  jurisdiction, 
the  plaintiff  had  two  remedies,  either  of  which  he  might  pursue. 
He  might  sue  the  assessors  in  tort,  or,  waiving  the  tort,  he  might 
bring  assumpsit  against  the  town  for  the  proceeds  of  the  property 
sold.  The  damages  are  determined  upon  different  principles,  as  the 
remedies  pursued  are  in  tort  or  assumpsit.  Electing  one  of  two 
forms  of  action,  the  party  elects  that  his  damages  shall  be  determined 
by  the  rules  which  govern  in  assessing  damages  in  the  remedy 
adopted.  The  plaintiff,  having  his  election  as  to  the  remedy  to  be 
pursued,  brought  his  action  of  assumpsit,  pursued  it  to  judgment, 
and  has  received  full  satisfaction  of  the  execution  issued  upon  such 

*  In  Miller  v.  Miller,  7  Pick.  (Mass.)  133  (1828),  which  was  assumpsit  for 
money  had  and  received,  brought  against  a  co-tenant  who  had  sold  growing 
trees  and  received  real  estate  in  part  payment,  the  court  said  (p.  136)  :  "In  re- 
gard to  the  objection  that  the  price  of  some  of  the  wood  was  received  in  real 
estate,  we  think,  as  the  sale  was  made  for  money,  the  defendant  was  answer- 
able for  the  price  when  he  discharged  the  purchaser,  whether  he  received 
cash  or  anything  else.  He  may  be  considered  as  the  purchaser  of  the  real 
estate  with  the  money  for  which  he  sold  the  wood.  The  plaintiff  consents 
to  the  rale  for  money,  but  not  that  real  estate  shall  be  substituted.  Suppose, 
after  selling  the  wood  for  money  to  be  paid  at  a  fnttu'e  day,  the  defendant 
had  sot  off  a  debt  which  he  owed  the  purchaser,  for  the  price;  he  would 
virtually  have  received  the  money.     So  he  has  by  taking  the  real  estate." 


IN    GENERAL.  585 

judgment.  In  that  suit,  the  tort  being  waived,  he  recovered  judg- 
ment only  for  the  j)roceeds  of  the  stock  sold  and  interest  thereon. 

Having  thus  affirmed  the  sale  by  claiming  the  proceeds  and  re- 
ceiving the  same,  he  now  in  this  action  demands  damages  for  the 
tort  heretofore  waived.  But  the  plaintiff  having  elected  his  remedy 
and  received  the  satisfaction  which  the  law  gives  in  such  case  can- 
not revive  his  cause  of  action.  A  claim  arising  from  one  entire  and 
continuous  tortious  act  cannot  be  divided  into  distinct  demands  and 
made  the  subject  of  separate  actions.  A  plaintiff  cannot  divide  his 
cause  of  action,  recover  compensation  in  assumpsit  by  waiving  the 
tort,  and  then,  having  received  such  compensation,  resort  to  the  tort 
which  has  been  waived,  and  in  that  again  recover  compensation  as 
though  the  tort  had  not  been  waived.  He  cannot  waive  all  wrong 
doing  and  recover  compensation  upon  that  basis,  and  then,  treating 
the  tort  once  waived  as  a  subsisting  grievance,  recover  damages 
which  are  to  be  assessed  upon  different  principles.  Neither  can  he 
recover  part  compensation  in  assumpsit,  thus  waiving  his  tort,  and 
then  resorting  to  it  as  an  existing  wrong  recover  the  residuum  of 
damages  in  another  form  of  action.  He  cannot  split  his  cause  of  ac- 
tion into  fractional  parts  and  recover  for  such  fractions  in  dift'erent 
suits  and  upon  different  grounds  of  action.  In  Inglee  v.  Bosw'orth,  5 
Pick.  502,  a  suit  was  brought  against  the  assessors  for  an  assess- 
ment which  was  unauthorized  and  illegal.  In  delivering  the  opinion 
of  the  court,  Morton,  J.,  says,  "Although  the  money  collected  by 
this  illegal  distress  and  paid  into  the  parish  treasury  might  have  been 
recovered  by  an  action  for  money  had  and  received  against  the  par- 
ish (Amesbury  W.  &  C.  Manuf.  Co.  v.  Amesbury,  17  Mass.  461  ; 
Sumner  v.  First  Parish  in  Dorchester,  4  Pick.  361),  yet  in  that  form 
of  action  the  remedy  might  not  have  been  commensurate  with  the 
injury  and  the  defendant  was  not  bound  to  resort  to  that  mode  of 
redress."  But  if  he  does  resort  to  that  mode  of  redress  he  must  be 
bound  by  the  damages  which  are  there  obtainable.  These,  as  has 
been  seen,  are  limited  to  the  proceeds  of  the  property  sold  illegally. 
Dow  v.  Sudbury,  5  Met.  73 ;  Shaw  v.  Becket,  7  Cush.  443. 

Having  sought  and  obtained  the  redress  which  the  form  of  action 
first  chosen  gave  him,  he  cannot  be  permitted  again  to  renew  litiga- 
tion for  a  grievance  once  waived  and  without  the  waiver  of  which 
he  was  not  entitled  to  recover.  Judgment  for  the  defendants. 


i"   WHIPPLE  V.  STEPHENS.  /  /  \ 

57  Atl.  Rep.  375   (R.  I.).— 1904. 


Stiness,  C.  J. — A  controlling  question  arises  in  this  case,  which 
we  will  first  consider.  The  plaintiff  sues  in  trover  for  goods  leased 
to  one  Graham,  who  had  turned  them  over  to  the  defendant.  Before 
beginning  this  action  the  plaintiff  sued  this  defendant  in  assumpsit, 


586  WAIVER   OF   TORT. 

which  action  was  dismissed  for  failure  of  plaintiff  to  file  a  bill  of 
particulars.  The  question  is  whether  this  was  such  an  election  of 
remedy  as  to  amount  to  a  waiver  of  the  tort,  and  so  to  preclude  the 
plaintiff  from  maintaining  this  action.  It  is  a  well-settled  rule  that, 
where  a  party  has  two  causes  of  action  inconsistent  with  each  other, 
an  election  to  proceed  upon  either  is  a  waiver  of  the  other.  For  ex- 
ample, if  one  has  the  right  to  affirm  or  to  repudiate  a  transaction,  he 
cannot,  after  taking  one  of  these  positions,  be  heard  to  maintain  the 
opposite.  As  applied  to  this  case,  the  argument  is  that  the  plaintiff 
had  the  right  to  waive  the  tort  and  to  sue  in  assumpsit  for  the  value 
of  the  goods ;  that,  having  done  this,  he  cannot  now  sue  in  trover. 
The  test  for  the  application  of  this  rule  is  whether  the  plaintiff  had 
the  two  forms  of  remedy.  If  he  did  not,  there  was  no  chance  for  an 
election.  A  party  cannot  choose  a  remedy  which  he  does  not  have. 
Thus  an  action  brought  in  a  court  without  jurisdiction,  or  before 
cause  of  action  accrued,  or  by  mistaken  remedy,  has  been  held  not 
to  constitute  a  waiver.    7  Ency.  PI.  &  Pr.  365,  366,  and  cases  cited. 

We  come,  then,  to  the  question  whether  the  plaintiff  had  two 
remedies — one  in  trover  for  a  conversion,  and  one  in  assumpsit  on 
a  waiver  of  the  tort.  When  property  has  been  converted  into  money, 
or  money's  worth,  there  is  no  question  that  either  trover  or  assump- 
sit will  lie.  There  is  a  diiference  of  opinion  as  to  whether  assumpsit 
will  lie  when  it  has  not  been  converted  into  money.  The  larger 
number  of  states  hold  that  it  will  not  lie,  and  other  states — nearly 
as  many — hold  that  it  will  lie  simply  on  the  conversion,  without 
regard  to  money  received  for  it.  See  cases  cited  in  7  Ency.  PI.  & 
Pr.  369,  370,  and  4  Cyc.  Law  &  Pro.  332,  334,  notes  68,  69.  The 
question  was  long  ago  settled  in  this  state  in  Wilder  v.  Aldrich,  2 
R.  I.  518,  where  Brayton,  J.,  said:  "The  refusal  to  deliver  would 
be  evidence  of  a  conversion  which  might  enable  a  party  to  recover 
in  trover ;  but  to  recover  in  assumpsit  it  is  necessary  to  prove  that 
the  goods  have  been  sold  and  the  money  received  therefor."  So,  in 
Lavalle  v.  Societe,  17  R.  I.  680,  24  Atl.  467,  16  L.  R.  A.  392,  it  was 
held  that  tort  may  be  waived  and  assumpsit  maintained  where  the 
tort  is  such  that  it  may  be  treated  by  the  injured  party  as  having 
created  a  contract  upon  which  he  may  recover ;  citing  Cooley  on 
Torts,  *95,  where  the  author  says :  "By  all  the  authorities  it  is  con- 
ceded that,  where  the  act  is  a  naked  trespass,  an  action  of  assumpsit 
cannot  be  maintained,  because  the  elements  of  assumpsit  are  want- 
ing." The  goods  sued  for  in  this  case  were  shown  to  have  been  de- 
stroyed by  fire  after  demand,  and  while  they  were  in  the  defendant's 
possession  ;  and  under  similar  circumstances  in  Schweizer  v.  Weiber, 
6  Rich.  Law  159,  it  was  held  that  the  plaintifif  could  not  waive  the 
tort  and  sue  in  form  ex  contractu.  It  is  evident  that  the  plaintiff 
could  not  sue  the  defendant  in  assumpsit,  and  doubtless  on  that  ac- 
count he  sufifered  his  action  to  be  dismissed.  However  this  may 
have  been,  there  was  no  election  of  remedy,  because  he  had  none  in 
assumpsit. 

The  remaining  questions  in  the  case  are  whether  the  defendant 


UNJUST    EXRICIIMEXT.  587 

had  the  goods,  whether  the  plaintiff  made  a  demand  for  them,  and 
whether  the  plaintiff  had  the  right  to  apply  payments  made  to  him 
by  the  lessee  to  other  accounts.  These  were  all  questions  of  fact, 
upon  which  there  was  sufficient  testimony  to  support  the  verdict. 


i.    Unjust  Enriclnnenf. 

PATTERSON  and  another  v.  PRIOR. 

18  Ind.  440. — 1862. 

WoRDEN.  J. — Suit  by  Prior  against  the  appellants,  for  work  and 
labor.    Judgment  for  the  plaintiff.     '''     *     '•' 

The  cause  was  submitted  to  the  court  for  trial  on  the  following 
agreed  statement  of  facts,  which  was  all  the  evidence  given  in  the 
cause,  viz. : 

"It  is  agreed  in  this  case,  that  the  plaintiff',  said  James  Prior,  was 
imprisoned  in  the  state  prison,  in  the  custody  of  said  Miller,  as 
warden  thereof,  under  and  by  virtue  of  a  judgment  of  the  Court  of 
Common  Pleas  of  Vanderburgh  county,  a  certified  copy  of  which 
judgment  is  filed  with  defendant's  answer.  That  during  his  con- 
finement he  did  work  and  labor  as  a  criminal ;  said  work  and  labor 
were  of  the  value  of  two  hundred  and  twenty-five  dollars ;  said  Pat- 
terson, during  all  the  time  of  said  Prior's  confinement  in  said  state 
prison,  was  the  lessee  thereof,  and  said  work  and  labor  were  done 
by  the  order  of  said  Miller,  and  said  Patterson  received  all  the  bene- 
fit of  said  labor  as  such  lessee.  The  time  of  said  Prior's  confinement 
commenced  on  the  12th  of  September,  1853,  and  he  was  discharged 
therefrom,  and  ordered  to  be  returned  to  the  sheriff  of  Vanderburgh 
county  upon  a  writ  of  habeas  corpus,  by  him  sued  out  on  the  first 
day  of  January,  1855." 

The  question  as  to  the  sufficiency  of  the  evidence  to  sustain  the 
finding  was  properly  presented  on  a  motion  for  a  new  trial. 

The  appellants  assign  errors  separately. 

At  the  time  the  appellee  was  convicted  and  sent  to  the  peniten- 
tiary, the  Court  of  Common  Pleas  had  no  jurisdiction  in  that  behalf ; 
hence,  the  conviction  and  judgment  were  nullities,  and  furnish  the 
appellants  no  protection  for  the  tort  committed  in  confining  him  in 
the  penitentiary.  Patterson  v.  Crawford,  12  Ind.  241.  The  appel- 
lants must  be  presumed  to  have  known  the  law,  and  that  they  had 
no  legal  right  to  imprison  the  appellee,  or  cause  him  to  labor.  That 
they  may  have  been  responsible  to  him  in  some  form  cannot  be 
doubted.  They  undoubtedly  committed  a  tort,  and  the  question  here 
is,  whether  the  tort  can  be  waived,  and  an  action  maintained  on  an 
implied  assumpsit? 

We  will  first  examine  this  question  so  far  as  it  relates  to  Patter- 
son.   He,  it  seems,  was  the  lessee  of  the  penitentiary,  and  received 


588  WAIVER   OF   TORT. 

all  the  benefit  of  the  appellant's  labor.  He  must  be  presumed  to 
have  assented  to  the  performance  of  the  labor,  and  being  benefited 
thereby,  the  law  implies  a  promise  to  pay  what  it  is  reasonably 
worth.  It  was  held  in  Patterson  v.  Crawford,  supra,  that  where 
labor  is  performed  for  the  benefit  of  a  party  without  an  express  con- 
tract, if  he  knows  it,  and  tacitly  assents  to  it,  he  will  be  liable  on  an 
implied  contract  to  pay  a  reasonable  compensation  therefor.  In  our 
opinion,  so  far  as  Patterson  is  concerned,  the  tort  may  be  waived, 
and  an  action  be  maintained  on  the  implied  assumpsit.  The  case, 
however,  is  entirely  different  as  to  Miller,  the  warden  of  the  peniten- 
tiary. He  received  no  benefit  of  the  plaintiff's  labor,  and  not  having 
been  benefited,  there  is,  as  to  him,  no  consideration  tO'  support  an  im- 
plied assumpsit  to  pay.  The  case  of  Webster  et  al.  v.  Drinkwater,  5 
Greenl.  R.  275,  is  much  in  point,  where  it  was  held,  that  "the  party 
committing  a  tort  cannot  be  charged  as  upon  an  implied  contract, 
the  tort  being  waived,  unless  some  benefit  has  actually  accrued  to 
him." 

Per  Curiam. — The  judgment  against  Miller  is  reversed,  and 
against  Patterson  it  is  affirmed.  Costs  to  be  apportioned  between 
Patterson,  and  Prior,  the  appellee. 


I -.LIMITED  INVESTMENT  ASSOC,  v.  GLENDALE  INVEST- 
^  MENT  ASSOC,  et  al. 

99  Wis.  54. — 1898. 

Action  against  the  Glendale  Investment  Association,  J.  E.  Grif- 
fin and  others,  to  recover  the  consideration  paid  for  certain  lands 
sold  by  defendants  to  plaintiff.  From  a  judgment  for  plaintiff,  the 
association  and  Griffin  separately  appeal.  Judgment  against  Grif- 
fin reversed. 

Bardeen,  J. — *  *  *  In  this  case,  the  facts  as  found  by  the 
jury,  and  which  are  fully  supported  by  the  evidence,  are  substantially 
that  the  Glendale  Investment  Association  was  the  owner  of  a  certain 
tract  of  land,  which  it  authorized  Clayton  to  sell  for  $2,700  per  acre, 
and  upon  which  it  was  to  pay  a  commission  of  $200  per  acre.  Clay- 
ton, with  full  knowledge  of  the  company,  associated  himself  with 
Griffin  and  Pollock  in  the  capacity  of  promoters,  for  the  purpose 
of  organizing  a  corporation  to  purchase  this  land.  The  plaintiff 
corporation  was  formed,  Clayton  and  Griffin  were  elected  directors 
and  officers,  and  the  land  was  purchased  at  $2,700  per  acre ;  Griffin 
and  Clayton  carefully  withholding  any  information  from  most  of 
the  subscribers  for  stock  that  they  were  to  receive  a  rebate  of  $200 
per  acre  for  their  mutual  benefit.  The  defendant  Glendale  Invest- 
ment Association,  knowing  of  the  organization  and  purpose  of  the 
corporation,  and  of  the  relation  Clayton  sustained  to  it,  helped  on 


UNJUST    ENRICHMENT.  589 

the  deal,  but,  in  order  to  clear  its  skirts,  makes  its  contract  to 
Clayton,  and  advises  the  assignment  of  it  to  the  corporation.  It 
then  receives  the  money  of  the  corporation,  and  forthwith  returns 
to  Clayton  some  $4,000  in  alleged  commissions.  That  this  was  a 
fraud  upon  plaintiff  seems  too  clear  for  argument.  As  soon  as 
these  facts  came  to  the  surface,  plaintiff  tendered  back  what  it 
received,  and  demanded  its  money.  Upon  the  refusal  to  pay,  plain- 
tiff made  its  election  to  recover  back  the  consideration  paid.  It 
might  have  chosen  other  remedies,  as  are  pointed  out  in  the  Franey 
Case  (96  Wis.  222)  ;  but,  having  elected  to  stand  upon  a  rescission 
of  the  contract  it  is  bound  thereby. 

An  inspection  of  the  complaint  and  the  proceedings  upon  the 
trial  lead  at  once  to  the  conclusion  that  this  action  is  based  upon 
implied  assumpsit,  and  is  really  an  action  for  money  had  and 
received.  Such  being  the  case,  it  becomes  important  to  inquire 
whether  the  recovery  against  the  defendant  Griffin  can  be  main- 
tained. The  rule  is  quite  elementary  that,  to  enable  a  person  to 
maintain  an  action  for  money  had  and  received,  it  is  necessary  for 
him  to  establish  that  the  persons  sought  to  be  charged  have  received 
money  belonging  to  him  or  to  which  he  is  entitled.  That  is  the 
fundamental  fact  upon  which  the  right  of  action  depends.  Trust 
Co.  v.  Gleason,  'j'j  N.  Y.  400.  The  purpose  of  such  an  action  is 
not  to  recover  damages,  but  to  make  the  party  disgorge ;  and  the 
recovery  must  necessarily  be  limited  by  the  party's  enrichment  from 
the  alleged  transaction.  Evidence  of  crooked  dealing  or  fraudu- 
lent practices  is  only  important  in  determining  the  plaintiff's  right 
to  secure  the  fund.  While  it  may  be  admitted  that  all  the  defend- 
ants were  joint  tortfeasors,  to  the  extent  that  they  would  be  jointly 
liable  for  all  damages  the  plaintiff  has  sustained  by  reason  of  their 
fraud,  yet,  when  it  is  sought  to  render  them  liable  on  quasi-con- 
tract, a  different  rule  prevails.  The  basis  of  recovery  in  the  latter 
case  being  a  loss  on  one  side  and  a  consequent  enrichment  on  the 
other,  liability  can  only  exist  in  so  far  as  these  elements  concvir. 
There  is  no  implied  promise  to  pay  damages.  The  promise  that 
the  law  implies  is  that  the  guilty  party  will  restore  that  which  he 
has  received,  and  which  the  other  has  shown  himself  entitled  to. 
To  the  extent,  therefore,  which  it  is  shown  that  the  one  party  has 
suffered  loss  and  the  other  gained  profit,  can  the  recovery  in  this 
form  be  sustained.  The  law  does  not  imply  a  promise  to  pay  for 
something  the  party  has  not  received,  while  in  the  case  of  the  tort 
it  casts  upon  him  an  obligation  to  pay  all  damage  done,  regardless 
of  a  promise.  Applying  these  observations  to  the  facts  before  us, 
we  find  that  every  dollar  of  the  money  sought  to  be  recovered  in 
this  action  was  paid  to  the  defendant  Glendale  Investment  Asso- 
ciation by  the  plaintiff.  Not  one  cent  was  paid  to  Griffin,  or  came 
to  his  pocket,  except  as  it  came  through  the  Glendale  Company  to 
Clayton,  and  then  to  him.  The  amount  received  by  Griffin  w^as 
but  a  small  fraction  of  the  money  paid  by  plaintiff  to  the  Glendale 
Company.     Plaintiff",  suing  as  for  a  rescission  of  its  contract,  and 


590  WAIVER   OF   TORT. 

upon  the  implied  promise  to  restore  that  which  has  been  taken  from 
it,  is  bound  to  look  to  the  one  to  whom  it  paid  the  money.  Cases 
may  and  do  occur  where  the  money  sought  to  be  recovered  was  re- 
ceived by  one  for  the  benefit  of  others,  and  where  all  interested  in 
the  fund  would  be  jointly  liable.  But  this  is  not  such  a  case.  The 
money  paid  by  plaintiff  to  the  Glendale  Company  was  not  paid  for 
or  on  behalf  of  Griffin.  It  was  paid  on  the  contract,  and  as  part  of 
the  purchase  money  of  the  land  conveyed.  There  was  no  contract 
between  plaintiff  and  Griffin  to  rescind,  and  hence  no  implied  obli- 
gation can  arise  between  them.  The  entry  of  judgment  against 
Griffin  for  the  full  amount  paid  on  the  contract  by  plaintiff  was  man- 
ifestly wrong,  and  must  be  reversed.  As  bearing  upon  the  ques- 
tions hereinbefore  discussed,  we  cite  Barndt  v.  Frederick,  78  Wis. 
I,  47  N.  W.  6;  Keener,  Quasi-Cont.  200-202;  Alger,  Law  Promot. 

O        00  ^  "T^  ^ 

The  judgment  of  the  superior  court  of  Milwaukee  county,  as  to 
the  defendant  Griffin,  is  reversed ;  and,  as  to  the  defendant  Glendale 
Investment  Association,  the  judgment  is  affirmed.^ 


ii.    Diminution  of  Plaintiif's  Estate. 

(\  SCHILLINGER  et  al.  v.  UNITED   STATES. 

155  U.  S.  163—1894.  ^    "^     ^ 

This  action  was  brought  in  the  United  States  Court  of  Claims  for 
infringement  of  Schillinger's  patent  for  the  construction  of  pave- 
ments. The  United  States  had  given  a  contract  to  one  Cook  for 
constructing  a  pavement,  who  did  the  work.  In  actions  against  the 
United  States  the  jurisdiction  of  the  Court  of  Claims  is  limited  by 
statute  to  those  on  "contracts,  express  or  implied."  Judgment  in 
the  Court  of  Claims  was  against  the  plaintiffs  and  they  appealed  to 
the  United  States  Supreme  Court. 

Brewer,  J. —  [After  holding  that  the  action  was  in  tort  and  not 
within  the  jurisdiction  of  the  Court  of  Claims,  and  that  the  words 
"contract,  express  or  implied,"  as  used  in  the  statute,  do  not  include 
the  quasi-contract  that  may  be  created  by  the  waiver  of  the  tort, 
proceeded  to  the  following  additional  objection  to  plaintiff's  re- 
covery.] 

But  there  is  still  another  aspect  in  which  this  case  may  be  consid- 
ered. The  patent  of  Schillinger  runs  to  the  mode  of  constructing 
concrete  pavements.  The  mere  form  of  a  pavement  with  free  joints 
— that  is,  in  separate  blocks — is  not,  since  the  filing  of  his  disclaimer, 

'Accord.  Brunflrcd  v.  Rice,  49  Oh.  640  (1892).  Sec  also,  Reynolds  v. 
PadgcU,  post,  p.  C24. 


DIMINUTION    OF    TLAINTIFF  S    ESTATE.  59I 

within  the  scope  of  this  j)atent.  It  may  be  tliat  the  process  or  mode 
by  which  Cook,  the  contractor,  constructed  the  j)avement  in  the  cap- 
itol  grounds  was  that  described  in  and  covered  by  the  SchiUinger 
patent.  He  may,  therefore,  have  been  an  infringer  by  using  that 
process  or  mode  in  the  construction  of  the  pavement,  and  hable  to 
the  claimants  for  the  damages  they  have  sustained  in  consequence 
thereof.  It  may  be  conceded  also  that  the  government,  as  having 
at  least  consented  to  the  use  by  Cook  of  such  process  or  method  in 
the  construction  of  the  pavement,  is  also  liable  for  damages  as  a 
joint  tortfeasor.  But  what  property  of  the  claimants  has  the  gov- 
ernment appropriated  ?  It  has  and  uses  the  pavement  as  completed 
in  the  capitol  grounds,  but  there  is  no  pretense  of  a  patent  on  the 
pavement  as  a  completed  structure.  When  a  contractor,  in  the  exe- 
cution of  his  contract,  uses  any  patented  tool,  machine,  or  process, 
and  the  government  accepts  the  work  done  under  such  contract,  can 
it  be  said  to  have  appropriated  and  be  in  possession  of  any  property 
of  the  patentee  in  such  a  sense  that  the  patentee  may  waive  the  tort, 
and  sue  as  on  an  implied  promise?  The  contractor  may  have  prof- 
ited by  the  use  of  the  tool,  machine,  or  process,  but  the  work,  as 
completed  and  enjoyed  by  the  government,  is  the  same  as  though 
done  by  a  dififerent  and  unpatented  process,  tool,  or  machine.  Take, 
for  illustration,  a  patented  hammer  or  trowel.  If  a  contractor  in 
driving  nails  or  laying  bricks  use  such  patented  tools,  does  any  pat- 
ent right  pass  into  the  building,  and  become  a  part  of  it,  so  that  he 
who  takes  the  building  can  be  said  to  be  in  the  possession  and  en- 
joyment of  such  patent  right  ?  Even  if  it  be  conceded  that  Cook,  in 
the  doing  of  this  work,  used  tar  paper,  or  its  equivalent,  to  separate 
the  blocks  of  concrete,  and  thus  finally  completed  a  concrete  pave- 
ment in  detached  blocks  or  sections,  was  such  completed  pavement 
any  diiTerent  from  what  it  would  have  been  if  the  separation  be- 
tween the  blocks  had  been  accomplished  in  some  other  way,  and  is 
the  government  now  in  possession  or  enjoyment  of  anything  em- 
braced within  the  patent?  Do  the  facts,  as  stated  in  the  petition  or 
as  found  by  the  court,  show  anything  more  than  a  wrong  done,  and 
can  this  be  adjudged  other  than  a  case  "sounding  in  tort"? 

We  think  not,  and  therefore  the  judgment  of  the  court  of  claims 
is  affirmed.^ 

'In  Phillips  V.  Homfray,  L.  R.  24  Ch.  D.  439  (1883),  the  claim  was  one 
for  compensation  "for  the  secret  and  tortious  use  made  by  the  deceased  R. 
Fothergill  and  others  during  his  lifetime,  of  the  underground  ways  and 
passages  under  the  plaintiff's  farm  for  the  purpose  of  conveying  the  coal  and 
ironstone  of  R.  Fothergill  and  his  co-trespassers."  Bowen,  L.  J.,  said  the 
difficulties  of  extending  the  principle  of  waiver  of  tort  "to  the  present  case 
appear  to  us  insuperable.  The  deceased,  R.  Fothergill,  by  carrying  his  coal 
and  ironstone  in  secret  over  the  plaintiffs'  roads  took  nothing  from  the 
plaintiffs.  The  circumstances  under  which  he  used  the  road  appear  to  us 
to  negative  the  idea  that  he  meant  to  pay  for  it.  Nor  have  the  assets  of  the 
deceased  defendant  been  necessarily  swollen  by  what  he  has  done.  He  saz'cd 
his  estate  expense,  but  he  did  not  bring  into  it  any  additional  property  or 
value  belonging  to  another  person." 


592  WAIVER   OF   TORT. 

^-  McSORLEY  V.  FAULKNER  et  al.     T*.  V  ^ 

i8  N.  Y.  SuppL.  460  (Common  Pleas,  General  Term). — 1892, 

Daly,  C.  J. — Upon  the  former  appeal  in  this  action  it  was  held 
by  the  general  term  of  this  court  that  the  plaintiff  was  not  entitled 
to  recover  upon  the  facts  then  shown,  viz. :  That  the  plaintiff  sold 
to  defendants  the  business  conducted  by  him  at  1151  Ninth  avenue; 
that  in  the  premises  at  the  time  of  the  sale  was  a  telephone,  which 
had  been  previously  placed  there  by  the  Metropolitan  Telephone  & 
Telegraph  Company  under  a  contract  with  the  plaintiff,  by  which 
he  was  to  pay  monthly  for  its  use  for  a  stated  period,  not  then  ex- 
pired ;  that  after  defendants  went  into  possession  the  telephone  re- 
mained in  the  premises  and  was  used  for  the  whole  period  (but  by 
whom  did  not  appear),  and  that  plaintiff  paid  the  company  for 
such  use  $50,  and  then  brought  this  action  to  recover  that  sum  from 
defendants,  as  upon  their  implied  request  to  pay  for  the  use  of  the 
instrument.  It  was  held  by  the  general  term  that  as  the  plaintiff 
made  the  original  contract  with  the  company,  and  the  defendants 
were  not  privy  to  it,  and  were  not  under  any  liability  to  pay  the  com- 
pany, in  the  absence  of  proof  that  the  telephone  was  left  in  the  prem- 
ises at  defendant's  request,  or  that  its  use  was  necessary  to,  or  was 
connected  with,  the  business,  or  that  there  was  any  agreement  be- 
tween the  parties  in  relation  thereto,  or  that  the  defendants  ever 
used  the  instrument,  the  plaintiff  was  not  entitled  to  recover  from 
them  what  he  had  to  pay  the  company ;  and  the  judgment  in  plain- 
tiff's favor  was  reversed,  and  a  new  trial  was  ordered.  McSorley 
V.  Faulkner,  (Com.  PI.  N.  Y.)  14  N.  Y.  Supp.  789.  Upon  the  sec- 
ond trial,  it  was  shown  that  the  defendants,  from  the  time  they  took 
possession  of  the  premises,  used  the  telephone  constantly  for  the 
whole  period  covered  by  the  plaintiff's  contract  with  the  company. 
At  the  close  of  the  plaintiff's  case,  the  defendants  moved  to  dismiss 
the  complaint,  and  the  plaintiff  moved  to  conform  the  pleadings 
to  the  proof  of  a  cause  of  action  upon  an  implied  contract  for  using 
the  telephone  as  belonging  to  the  plaintiff.  The  plaintiff's  motion 
was  granted,  and,  after  the  proofs  on  both  sides  were  in,  the  justice 
rendered  judgment  in  plaintiff's  favor  for  $50  and  costs.  The 
ruling  of  the  previous  general  term  has  settled  the  law  of  the  case, 
that  the  plaintiff  has  not  shown  himself  entitled  to  recover  upon  the 
ground  originally  claimed  in  the  complaint,  viz.,  an  implied  request 
to  him  by  defendants  to  pay  the  company  for  their  use  of  the  instru- 
ment ;  for  there  was  wanting  the  basis  of  such  implication,  i.  e.,  a 
primary  liability  of  the  defendants  to  the  company,  and  a  compul- 
sion of  law  upon  the  plaintiff,  growing  out  of  the  acts  of  the  defend- 
ants (and  not  out  of  his  own  independent  contract),  to  make  the 
payment  sued  for.  The  company  may  have  had  the  option  to  hold 
the  defendants  for  the  use  of  the  telephone,  and  the  services  ren- 
dered in  operating  it  for  their  benefit,  upon  an  implied  promise  to 


DIMINUTION    OF    PLAINTIFF  S    ESTATE.  593 

pay  for  such  services,  but  this  would  have  been  an  option  to  termi- 
nate the  contract  with  the  plaintiff,  and  would  have  discharged  him 
for  the  two  contracts  could  not  subsist  together ;  and  any  payment 
by  plaintiff  thereafter  in  behalf  of  defendants  would  have  been  vol- 
untary, and  not  recoverable  against  them.  First  Nat.  Bank  of  Ball- 
ston  Spa  V.  Board  of  Sup'rs,  io6  N.  Y.  488-494,  13  N.  E.  Rep.  439. 
But  the  contract  was  not  terminated  by  the  company,  and  the  plain- 
tiff remained  the  licensee  of  the  instrument  and  entitled  to  its  use, 
and  to  the  services  of  the  company  in  transmitting  communications 
through  their  office  during  the  whole  period  of  his  contract.  The 
use  by  defendants  of  the  instrument  and  of  these  services  was  a  use 
of  the  plaintift''s  property,  and  it  w^ould  seem  just  and  reasonable 
to  imply  a  promise  on  their  part  to  pay  the  plaintiff  for  such  use. 
They  are  chargeable  with  notice  when  they  found  the  instrument 
upon  the  premises  which  plaintiff  transferred  to  them,  and  when 
they  began  and  continued  to  use  it,  that  such  use  was  not  gratutitous, 
but  involved  an  obligation  of  the  licensee  of  the  company  to  pay, 
and  that  they  were  enjoying  the  rights  for  which  he  was  paying  or 
was  liable  to  pay.  A  duty  to  make  him  compensation  arose  from 
the  circumstances,  and  a  contract  to  do  so  will  be  implied.  "In  this 
sense,  contract  is  co-ordinate  and  commensurate  with  duty  ;  and  it 
is  a  familiar  principle  of  the  law,  which  has  a  wide  though  far  from 
a  universal  application,  that  whatsoever  it  is  certain  that  a  man 
ought  to  do,  that  the  law  supposes  him  to  have  promised  to  do.  'Im- 
plied contracts,'  says  Blackstone  (2  Bl.  Comm.  p.  443),  'are  such 
as  reason  and  practice  dictate,  and  which,  therefore,  the  law  pre- 
sumes that  every  man  undertakes  to  perform.'  These  contracts 
form  the  warp  and  woof  of  actual  life."  i  Pars.  Cont.  4.  The  ab- 
sence of  the  essentials  of  ordinary  contract  relation  will  not  affect 
the  liability.  "There  is  a  class  of  cases  where  the  law  prescribes 
the  rights  and  liabilities  of  parties  who  have  not  in  reality  entered 
into  any  contract  at  all  with  one  another,  but  between  whom  cir- 
cumstances have  arisen  which  make  it  just  that  one  should  have  a 
right,  and  the  other  should  be  subject  to  a  liability,  similar  to  the 
rights  and  liabilities  in  certain  cases  of  express  contracts.  *  *  * 
Implied  or  constructive  contracts  of  this  nature  are  similar  to  the 
constructive  trusts  of  courts  of  equity,  and  in  fact  are  not  contracts 
at  all.  Add.  Cont.  22.  And  a  somewhat  similar  distinction  is  rec- 
ognized in  the  civil  law,  where  it  is  said :  'In  contracts,  it  is  the  con- 
sent of  the  contracting  parties  which  produces  the  obligation ;  in 
q2iasi  contracts,  there  is  not  any  consent.  The  law  alone  or  natural 
equity  produces  the  obligation  by  rendering  obligatory  the  fact  from 
which  it  results.  Therefore,  these  facts  are  called  quasi  contracts, 
because,  without  being  contracts,  they  produce  obligations  in  the 
same  manner  as  actual  contracts.'  i  Poth.  Obi.  113,  *  *  *  So 
obligations  are  created  in  consequence  of  frauds  or  negligence,  and 
in  either  case  the  law  compels  reparation  and  permits  the  tort  to  be 

Woodruff's  Cases — 38 


594  WAIVER    OF   TORT. 

waived,  but  there  is  no  contract."  People  v.  Spcir,  'jy  N.  Y.  144- 
150.  The  defendants,  by  using  the  telephone  constantly  in  their  busi- 
ness, must  have  intended  one  of  two  things :  to  pay  the  person  en- 
titled to  the  use  of  the  instrument  as  licensee  the  fair  value  of  such 
use,  which  they  engrossed  in  their  business,  or  to  defraud  him.  In 
neither  case  can  an  implied  contract  to  pay  be  justly  or  lawfully  de- 
nied. 

It  is  not  essential  to  the  rights  of  the  plaintiff  to  recover  that  he 
should  have  assented  to  the  use  of  the  instrument  by  defendants,  or 
even  have  known  of  it.  Rider  v.  Rubber  Co.,  28  N.  Y.  379.  In 
that  case  the  plaintiff'  left  with  the  defendants  certain  property,  in 
the  expectation  that  they  would  purchase  it.  The  managing  agent 
of  the  company  found  it  on  the  premises,  and,  having  use  for  it  in 
the  business  of  the  company,  took  the  responsibility  of  using  it.  It 
was  held  that,  notv/ithstanding  the  fact  that  plaintiff  did  not  give 
nor  intend  to  give  the  use  of  the  same  to  the  defendant,  the  law  im- 
plied an  agreement  by  defendant  to  pay  plaintiff  the  value  of  the 
use  while  the  same  v/as  used  in  its  business.  A  number  of 
cases  are  cited  by  appellants,  but  none  conflict  with  the  view  here 
taken  of  defendants'  liability.  There  is  no  analogy  between  this 
claim  and  the  claim  for  the  use  and  occupation  of  real  property, 
where  the  conventional  relation  of  landlord  and  tenant  must  be 
shown  (Collyer  v.  Collyer,  113  N.  Y,  442,  21  N.  E.  Rep.  114;  Crosby 
V.  Home  &  Danz  Co.,  45  Minn.  249,  47  N.  W.  Rep.  717;  Reed  v. 
Lammel  (Minn.),  42  N.  W.  Rep,  202;  In  re  Curtis'  Will  (Sup.), 
16  N.  Y.  Supp.  180;  McCrory  v.  Anderson  (Ind.  Sup.),  2  N.  E. 
Rep.  213  ;  Tanner  v.  Rummel,  24  Wkly.  Dig.  149)  ;  or  for  the  use 
of  a  patented  device,  which  is  an  infringement  upon  a  right  and  not 
the  taking  of  property  (Forehand  v.  U.  S.,  23  Ct.  CI.  477)  ;  or  for 
work  voluntarily  performed  (Ulmer  v.  Farnsworth,  80  Me.  500,  15 
Atl.  Rep.  65)  or  payments  voluntarily  made  (City  of  Albany  v.  Mc- 
Namara,  117  N.  Y.  168,  22  N.  E.  Rep.  931)  ;  or  a  claim  based  upon 
estoppel  (Bowers  v.  Smith  (Sup.),  8  N.  Y.  Supp.  226)  ;  or  an  action 
at  law  by  a  subcontractor  against  the  owner,  for  the  value  of  mate- 
rials furnished  to  the  contractor,  and  used  by  the  owner,  which  was, 
in  effect,  the  nature  of  the  claim  made  in  Hogan  v.  City  of  Brooklyn, 
52  N.  Y.  282 ;  or  an  action  by  a  lessor  against  a  lessee  for  an  extra 
use  of  Croton  water  measured  by  a  water-meter,  where  the  covenant 
on  the  part  of  the  lessee  was  to  pay  only  the  regular  annual  charge 
for  Croton  water  (Moffat  v.  Henderson,  50  N.  Y.  Super.  Ct.  211). 
It  is,  however,  contended  that  the  claim  here  made  is  analogous  to 
that  discountenanced  in  Loyd  v.  Fox,  i  E.  D.  Smith  loi,  where 
plaintiff,  having  been  tenant  of  certain  premises  in  the  city  of  New 
York,  under  a  hiring  for  a  year,  paid  the  charge  for  the  use  of  the 
Croton  water  for  that  year,  and  having  given  up  possession,  after 
four  months'  occupancy,  and  the  premises  having  been  relet  by  the 
Ianfllr)rd  for  the  residue  of  the  year,  claimed  payment  of  the  new 
tenant  for  the  use  of  the  Croton  water  for  the  unexpired  period  of 
eight  months.    But  the  plaintiff  had  no  property  in  the  water,  nor  in 


DIMINUTION    OF    PLAINTIFF'S    ESTATE.  595 

the  pipes  upon  the  premises,  and  wlien  he  abandoned  possession 
necessarily  rcHnquislied  all  his  right ;  and  defendant  could  not  be 
held  upon  any  implied  promise  to  pay  plaintiff  for  what  plaintiff 
could  not  use  or  enjoy  himself.  But  in  this  case  plaintiff  had  the 
right  to  remove  the  telephone  instrument  and  connect  it  whereso- 
ever he  removed  to,  and  defendants,  in  enjoying  the  benefit  of  it 
while  it  remained  ui)on  the  premises,  were  using  the  exclusive  and 
undoubted  property  of  the  j^laintiff. 

Objection  is  made  that  there  was  no  sufficient  proof  of  the  value 
of  the  use  of  the  telephone  during  the  period — four  months — sued 
for.  The  plaintiff  testified  that  it  was  worth  $12.50  per  month.  It 
appears  that  his  knowledge  of  the  value  was  founded  upon  what 
he  paid  himself  and  knew  that  others  paid.  It  is  not  easy  to  see  what 
other  or  better  evidence  of  value  could  be  produced.  Appellants  do 
not  suggest  any.  Persons  hiring  and  using  telephones  in  their  busi- 
ness are  competent  to  testify  to  the  value  of  such  use. 

The  judgment  should  be  affirmed,  with  costs.    All  concur. 


BROWN  v.  BROWN. 

40  Hun,  418  (N.  Y.  Supreme  Ct.).— 1886. 

Action  to  recover  the  amount  obtained  by  the  defendant  under 
the  circumstances  stated  in  the  opinion. 

Landon,  J. — This  case  was  decided  in  favor  of  the  defendant  by 
the  application  of  the  well-settled  rule,  that  where  two  rival  claim- 
ants demand  payment,  each  in  his  own  right,  of  the  debt  which  the 
debtor  owes  to  one  of  them  only,  if  the  debtor  pays  the  wrong  claim- 
ant, the  debt  due  to  the  rightful  creditor  is  not  hereby  affected,  and 
he  acqviires  no  title  to  recover  the  money  of  the  party  who  wrong- 
fully claimed  and  received  it.  Patrick  v.  Metcalf,  37  N.  Y.  332 ; 
Butterworth  v.  Gould,  41  N.  Y.  450.  But  this  rule  rests  upon  the 
basis  that  the  wrongful  claimant  obtains  the  money  upon  his  own 
independent  claim  ;  that  in  using  his  own  he  does  not  prejudice  his 
competitors ;  that  he  does  not  exercise  any  right  or  title  of  which  he 
has  wrongfully  divested  his  competitor ;  that  he  is  not  assuming  any 
agency  for  him  ;  that  he  is  not  in  privity  with  him.  Carver  v.  Creque, 
48  N.  Y.  385  ;  Peckham  v.  Van  Wagenen,  83  N.  Y.  40;  Hathaway  v. 
Town  of  Cincinnatus,  62  N.  Y.  434 ;  Bradley  v.  Root,  5  Paige  632. 

Here  the  defendant  had  made  an  absolute  gift  of  the  bank-book, 
and  of  the  title  to  demand  and  receive  the  money  represented  by  it, 
to  the  plaintiff.  When  the  defendant,  [afterward]  by  force  and 
against  the  will  of  the  plaintiff,  took  the  bank-book  from  her,  he 
knew  that  he  had  no  title  to  it  or  the  money  represented  by  it.  What- 
ever claim  he  might  assert  to  the  money  he  well  knew  rested  upon 
his  fraud,  if  not  upon  his  crime.     But  he  thus  obtained  the  physical 


596  WAIVER   OF   TORT. 

power  and  apparent  authority  to  represent  the  plaintiff  in  the  pre- 
sentation of  the  book  to  the  bank,  and  by  the  act  of  presenting  the 
book  he  did  represent  that  whatever  title  or  authority  she  had  in  the 
matter  was  exercisable  by  him,  and  he  thus  obtained  the  money. 

He  can  take  no  advantage  from  his  own  wrong,  and  since  he  could 
not,  in  the  absence  of  any  title  from  the  plaintiff,  lawfully,  as  against 
her,  obtain  the  money  except  as  her  agent,  he  may  not,  with  the 
proceeds  in  his  pocket,  deny  that  he  obtained  them  in  the  only  man- 
ner in  which  he  could  lawfully  obtain  them. 

It  is  probable  the  plaintiff  could  have  maintained  an  action  against 
the  bank,  since  the  bank  had  notice  of  her  rights.  But  it  was  open 
to  the  plaintiff  to  elect  to  adopt  the  acts  of  the  defendant  or  repudi- 
ate them.  He  shall  not  be  heard  to  plead  his  own  turpitude,  and  is 
therefore  estopped  to  deny  that  he  did  not  assume  to  act  as  the 
agent  of  the  plaintiff.  She  may  waive  the  tort,  adopt  his  acts,  and 
compel  him  to  restore  their  fruits. 

It  comes  to  the  same  result  if  we  regard  the  defendant  as  trustee 
ex  maleiicio.  He  knew  that  by  his  gift  the  book  and  the  money  it 
represented,  and  the  rights  it  conferred,  were  the  plaintiff's.  He 
took  the  book  by  force,  exercised  her  rights,  and  obtained  the 
money.  It  was  his  duty  to  do  nothing  with  her  property  and  her 
rights  for  his  own  advantage,  and  he  is,  at  her  election,  her  trustee 
ex  maleUcio  of  the  proceeds  of  his  acts  of  usurpation.  He  held  the 
proceeds  of  the  book  by  same  title  that  he  held  the  book,  and  as  he 
had  no  title  to  the  book  he  had  none  to  its  proceeds,  and  must  ac- 
count to  the  true  owner.     Comstock  v.  Hier,  y^,  N.  Y.  269. 

The  judgment  should  be  reversed,  new  trial  granted,  referee  dis- 
charged, costs  to  abide  event. 

BocKES,  J.,  concurred. 

Learned,  P.  J. — I  concur  in  this  result  on  the  ground  that  the 
defendant,  by  taking  away  plaintiff's  property  by  force,  committed 
a  tort  (trespass  or  trover)  for  which  he  became  liable.  He  remains 
liable  still ;  and  the  amount  collected  by  him,  being  the  amount  of 
the  indebtedness  expressed  in  the  book,  is  the  measure  of  the  dam- 
ages to  which  she  is  entitled. 

Judgment  reversed,  new  trial  granted,  costs  to  abide  event.  Ref- 
eree discharged. 


ill.  Joint   Tortfeasors. 

TERRY  ET  AL.  V.  HUNGER. 

121  N.  Y.  161 — 1890. 

Peckiiam,  J. — The  plaintiffs  commenced  an  action  heretofore 
against  two  other  persons,  named,  respectively,  Kipp  and  Munger, 
on  account  of  the  same  transaction  for  which  this  action  was  brought 
against  the  above-named  sole  defendant.    The  character  of  the  com- 


JOINT    TORTFEASORS.  597 

plaint  in  that  action  was  before  this  court,  and  the  case  is  reported 
in  88  N.  Y.  629  [Goodwin  v.  Griffis].  The  defendants  in  that  case 
were  charged  with  detaching  and  carrying  away  from  the  mill  the 
machinery  in  question  in  that  case,  and  also  in  this,  and  using  it  for 
themselves.  It  was  there  held,  upon  a  perusal  of  the  complaint,  that 
the  action  was  of  a  nature  ex  contractu,  and  not  ex  delicto,  for  the 
wrong  done  plaintiffs  by  the  conversion  of  their  property.  As  the 
defendants  therein  had  not,  after  their  conversion  of  it,  themselves 
sold  or  otherwise  disposed  of  the  property  which  they  acquired  from 
the  plaintiffs,  the  fiction  of  the  receipt  by  defendants  of  money  for 
the  sale  of  the  property,  which  ex  ccquo  et  bono  they  ought  to  pay 
back  to  plaintiffs,  and  which  they  therefore  impliedly  promised 
to  pay  back,  could  not  be  indulged  in,  and  the  position  of  the  par- 
ties would  have  been  at  one  time  the  subject  of  some  doubt,  whether 
there  was  any  foundation  for  the  doctrine  of  an  implied  promise  in 
such  case,  or  any  possibility  of  the  waiver  of  the  tort  committed  by 
the  defendants  in  the  conversion  of  the  property.  In  some  of  the 
states  it  has  been  denied,  and  such  denial  placed  upon  the  ground 
that  the  property  remained  in  the  hands  of  the  wrong-doer,  and 
therefore,  no  money  having  been  received  by  him  in  fact,  an  implied 
promise  to  pay  over  money  had  and  received  by  defendant  to  the 
plaintiff's  use  did  not  and  could  not  arise.  Such  was  the  case  of 
Jones  V.  Hoar,  5  Pick.  285.  But  the  great  weight  of  authority  in 
this  country  is  in  favor  of  the  right  to  waive  the  tort,  even  in  such 
case.  If  the  wrong-doer  has  not  sold  the  property,  but  still  retains 
it,  the  plaintiff  has  the  right  to  waive  the  tort,  and  proceed  upon  an 
implied  contract  of  sale  to  the  wrong-doer  himself,  and  in  such 
event  he  is  not  charged  as  for  money  had  and  received  by  him  to  the 
use  of  the  plaintiff.  The  contract  implied  is  one  to  pay  the  value  of 
the  property  as  if  it  had  been  sold  to  the  wrong-doer  by  the  owner. 
If  the  transaction  is  thus  held  by  the  plaintiff  as  a  sale,  of  course  the 
title  to  the  property  passes  to  the  wrong-doer,  when  the  plaintiff 
elects  to  so  treat  it.  See  Pom.  Rem.  (2d  ed.),  §§  567-569;  Putnam 
v.  Wise,  I  Hill  234,  240,  and  note  by  Mr.  Hill ;  Berly  v.  Taylor,  5 
Hill  577,  584 ;  Norden  v.  Jones,  33  Wis.  600,  605  ;  Cummings  v. 
Vorce,  3  Hill  283 ;  Spoor  v.  Newell,  Id.  307 ;  Abbott  v.  Blossom,  66 
Barb.  353.  We  think  this  rule  should  be  regarded  as  settled  in  this 
state.  The  reasons  for  the  contrary  holding  are  as  well  stated  as 
they  can  be  in  the  case  above  cited  from  Massachusetts  (5  Pick.), 
and  some  of  the  cases  looking  in  that  direction  in  this  state  are  cited 
in  the  opinion  of  Talcott,  J.,  in  the  case  reported  in  66  Barb.,  supra. 
We  think  the  better  rule  is  to  permit  the  plaintiff  to  elect,  and  to 
recover  for  goods  sold,  even  though  the  tortfeasor  has  not  himself 
disposed  of  the  goods. 

There  is  no  doubt  that  the  complaint  in  the  former  case,  reported 
in  88  N.  Y.,  proceeded  upon  the  theory  of  a  sale  of  the  property  to 
the  defendants  in  that  action,  and  it  was  so  construed  bv  this  court, 
and  w^e  have  no  inclination  to  review  the  correctness  of  that  decision. 
We  have,  then,  the  fact  that  the  defendants  in  that  action  were  sued 


598  WAIVER   OF   TORT. 

by  the  plaintiffs  herein,  upon  an  implied  contract  to  pay  the  value 
of  the  property  taken  by  them,  as  upon  a  sale  thereof  by  plaintiffs 
to  them.  The  plaintiffs  having  treated  the  title  to  the  property  as 
having  passed  to  the  defendants  in  that  suit  by  such  sale,  can  the 
plaintiffs  now  maintain  an  action  against  another  person,  who  was 
not  a  party  to  that  action,  to  recover  damages  from  him  for  his  al- 
leged conversion  of  the  same  property,  which  conversion  is  founded 
upon  his  participation  in  the  same  acts  which  phintiffs  in  the  old 
suit  have  already  treated  as  constituting  a  sale  of  the  property  ?  We 
think  not.  The  judgment  roll  in  the  former  action  was  received  in 
evidence  upon  the  trial  of  this  case,  against  the  objection  of  the 
plaintiffs,  and  notwithstanding  the  fact  that  the  defendant  herein 
was  not  a  party  to  such  action.  It  appears  that  all  the  facts  sur- 
rounding the  transaction  as  to  the  taking  of  the  property  were 
known  to  the  plaintiffs  at  the  time  when  they  commenced  their  ac- 
tion on  the  implied  contract  of  sale.  The  plaintiff's  objected  to  the 
introduction  of  the  judgment  roll  as  incompetent  and  immaterial, 
and  that  there  was  no  such  defense  set  up  in  the  answer. 

The  plaintiffs  claim  that  the  admission  of  such  judgment  violated 
the  well-known  general  rule  that  a  judgment  is  not  binding  upon 
any  but  parties  and  privies.  We  think  the  decision  does  not  trench 
upon  the  rule  in  question.  If  the  judgment  had  been  introduced  for 
the  purpose  of  proving  any  fact  adjudicated  thereby,  any  fact  in  liti- 
gation therein,  or  which  properly  might  have  been  so  litigated,  the 
rule  would  doubtless  apply,  and  no  such  fact  would  or  could  be 
proved  in  favor  of  the  defendant  herein  as  against  the  plaintiffs  by 
such  judgment,  because  the  defendant  was  not  a  party  or  privy  to 
it.  It  was  not  by  way  of  estoppel,  however,  that  the  judgment  was 
admissible.  It  was  admissible  for  the  sole  purpose  of  showing  that 
the  plaintiffs  had  elected  to  treat  the  taking  of  this  property  as  a  sale, 
and  this  was  shown  by  a  perusal  of  the  complaint  therein.  Any  de- 
cisive act  of  the  plaintiffs,  with  knowledge  of  all  the  facts,  would 
determine  their  election  in  such  a  case  as  this.  Sanger  v.  Wood,  3 
Johns.  Ch.  416,  421.  The  proof  that  an  action  of  that  nature  had 
been  in  fact  commenced  would  have  been  just  as  conclusive  upon  the 
plaintiffs  upon  the  question  of  election  (proof  of  knowledge  of  all 
the  facts  at  that  time  being  given)  as  would  th.e  judgment  have  been. 
It  was  not  necessary  that  a  judgment  should  follow  upon  the  action 
thus  commenced.  In  those  cases,  where  the  commencement  of  an 
action  has  not  been  regarded  as  an  election  of  remedies,  the  fact  has 
appeared  that  the  plaintiff  at  the  time  of  its  commencement  was  not 
aware  of  the  facts  which  would  have  enabled  him  to  elect,  or,  at 
least,  it  did  not  appear  that  he  was  acquainted  with  the  facts  when 
he  commenced  his  action.  Such  is  the  case  in  Foundry  Co.  v.  Her- 
see,  T03  N.  Y.  25,  9  N.  K.  Rep.  487.  Here  the  plaintiffs  knew  all 
the  facts  when  they  sued  the  other  defendants. 

The  case  of  Conrow  v.  Little,  115  N.  Y.  387,  393,  22  N.  E.  Rep. 
346,  is  to  the  effect  that  the  commencement  of  the  action,  where  all 
the  facts  are  known,  is  conclusive  evidence  of  an  election.     Judge 


JOINT    TORTFEASORS.  599 

Danfortii  in  that  case,  in  speaking  of  plaintiff's  election  to  affirm 
or  avoid  the  contract  therein  spoken  of,  said  the  plaintiffs  could  af- 
firm or  rescind  it.  "They  could  not  do  both,  and  there  must  be  a 
time  when  their  election  should  be  considered  final.  We  think  that 
time  was  when  they  commenced  an  action  for  the  sum  due  under  the 
contract."  It  was  also  held  that  the  discontinuance  of  that  action 
was  immaterial.  It  was  the  fact  that  the  plaintiffs  once  elected  their 
remedy  and  acted  affirmatively  upon  such  election  that  determined 
the  issue.  After  that  the  option  no  longer  existed,  and  it  was  of 
no  consequence,  therefore,  whether  the  plaintiffs  did  or  did  not  make 
their  choice  effective.  When  it  becomes  necessary  to  choose  between 
inconsistent  rights  and  remedies,  the  election  will  be  final,  and  can- 
not be  reconsidered,  even  where  no  injury  has  been  done  by  the 
choice,  or  would  result  from  setting  it  aside.  2  Herm.  Estop.,  p. 
1 172,  §  1045. 

The  plaintiffs  having,  by  their  former  action,  in  effect  sold 
this  very  property,  it  must  follow  that  at  the  time  of  the  com- 
mencement of  this  one  they  had  no  cause  of  action  for  a  conver- 
sion in  existence  against  the  defendant  herein.  The  transfer  of 
the  title  did  not  depend  upon  the  plaintiffs  recovering  satisfaction 
in  such  action  for  the  purchase  price.  It  was  their  election  to  treat 
the  transaction  as  a  sale  which  accomplished  that  result,  and  that 
election  was  proved  by  the  complaint  already  referred  to.  But  it  is 
urged  that  this  election  of  the  plaintiffs  is  not  binding  upon  them 
in  favor  of  the  defendant  herein,  because  it  was  only  against  the  de- 
fendants in  the  other  action  that  they  made  their  election.  It  is  said 
there  is  no  case  to  be  found  where  an  election  has  been  treated  as 
binding  in  favor  of  a  stranger  to  the  transaction,  and  that  the  defend- 
ant herein  is  such  stranger  so  far  as  the  plaintiffs'  transaction  with 
the  defendants  in  the  other  action  is  concerned.  I  do  not  think  this 
claim  can  be  maintained.  In  the  fi.rst  place,  what  is  the  nature  of 
the  plaintiffs'  act  in  electing  to  consider  the  transaction  as  a  sale? 
It  is  a  decision  or  determination  upon  their  part  to,  in  effect,  ratify 
and  proclaim  the  lawfulness  of  the  act  of  taking  the  property,  and  it 
is  an  assertion  on  the  plaintiffs'  part  that  in  so  doing  the  plaintiffs' 
interest  in  the  property  was  purchased,  and  that  thereby  their  whole 
title  was  transferred,  and  they  ceased  to  own  any  part  of  the  prop- 
erty, and  that  those  who  took  it  impliedly  promised  the  plaintiffs  to 
pay  them  the  value  of  their  interest  in  such  property.  This  being 
so,  why  does  not  such  transfer  of  litle  bind  the  plaintiffs  as  to  the 
whole  world  ?  Surely,  the  title  which  plaintiffs  once  had  in  the  prop- 
erty cannot  at  the  same  time  rest  with  them  and  pass  to  those  who 
took  it.  If  the  title  really  once  passed,  that  would  be  a  fact  actually 
existing,  which  anybody  ought  to  have  the  right  to  prove  if  it  be- 
came material  in  protecting  his  own  rights,  unless  there  were  some 
equitable  considerations  in  such  case  which  should  prevent  it.  I 
cannot  see  that  any  exist  here. 

With  full  knowledge  of  all  the  facts  the  plaintiffs  deliberately 
elected  to  treat  the  transaction  in  which  this  defendant's  share  was 


600  WAIVER   OF   TORT. 

well  known,  as  a  sale  of  the  property,  and  now  they  propose  to  re- 
cover from  this  defendant  damages  for  the  conversion  by  him  of  the 
very  same  property  which  they  have  already  said  they  sold,  by  vir- 
tue of  the  very  transaction  which  they  now  claim  amounted  to  a  con- 
version of  the  property  by  this  defendant.  Why  should  the  defend- 
ant not  be  permitted  to  set  up  such  sale  as  a  complete  defense  to 
this  action?  The  plaintiffs  have  done  nothing  by  reason  of  de- 
fendant's acts  which  should  estop  him  from  setting  up  this  defense. 
Their  situation  has  not  since  been  altered  for  the  worse  by  any- 
thing the  defendant  has  done.  If  not,  then  the  fact  that  the  plain- 
tiffs sold  the  property  by  virtue  of  the  transaction  which  they  now 
seek  to  treat  as  a  conversion  of  it  by  this  defendant,  must  and  ought 
to  operate  as  a  perfect  bar  to  the  maintenance  of  this  action.  And 
this  is  not  in  the  least  upon  the  principle  of  equitable  estoppel.  It 
is  upon  the  principle  that  the  plaintiffs,  by  their  own  free  choice,  de- 
cided to  sell  the  property,  and,  having  done  so,  it  necessarily  follows 
that  they  have  no  cause  of  action  against  defendant  for  an  alleged 
conversion  of  the  same  property  by  the  same  acts  which  they  had 
already  treated  as  amounting  to  a  sale. 

In  Conrow  v.  Little,  115  N.  Y.  387,  22  N.  E.  Rep.  346,  already 
cited,  the  plaintiffs'  election  to  affirm  the  contract  between  them  and 
Branscom,  evidenced  by  their  commencement  of  the  attachment  suit, 
was  held  conclusive  upon  them,  and  the  defendants  were  permitted 
to  take  advantage  of  such  election,  although  they  were  not  parties 
or  privies  to  the  plaintiffs'  suit  against  Branscom.  The  defendants 
were  enabled  to  take  advantage  of  it  because  such  election  showed 
that  the  plaintiffs  had  affirmed  their  contract  with  Branscom,  and 
the  plaintiffs'  suit  against  defendant  Little  could  only  be  maintained 
upon  the  assumption  that  such  contract  had  been  rescinded.  If  the 
other  suit  had  gone  to  judgment,  would  not  such  judgment  have  been 
admissible  for  the  purpose  of  showing  the  naked  fact  of  the  election 
of  plaintiffs  to  affirm  the  contract?  I  have  no  doubt  of  it.  In 
Fowler  v.  Bank,  113  N.  Y.  450,  21  N.  E.  Rep.  172,  we  held  that  the 
action  could  not  be  maintained,  because  the  plaintiff,  by  suing  the 
party  to  whom  the  bank  had  already  wrongfully  paid  the  money, 
elected  to  regard  such  payment  as  rightfully  made,  and  a  cause  of 
action  against  the  bank  to  recover  against  it  the  amount  of  its  former 
indebtedness  to  the  plaintiff  was  held  to  have  been  forever  aban- 
doned because  of  such  election.  In  that  case,  in  order  to  prove  the 
fact  of  election,  the  defendant  proved  the  commencement  of  the 
former  action  by  the  plaintiff,  and  it  was  proved,  as  we  assumiC,  by 
the  production  of  the  judgment  roll  in  such  former  action.  It  was 
admissible  for  the  same  purpose  for  which  the  judgment  was  ad- 
missible in  this  case,  viz..  to  prove  the  fact  of  the  plaintiff's  election 
to  pursue  a  totally  inconsistent  remedy.  The  defendant  was  not  pre- 
cluded from  availing  itself  of  such  defense,  although  it  was  neither 
a  party  nor  privy  to  the  judgment  which  proved  the  fact  of  such 
election.  In  Bank  v.  Beale,  34  N.  Y.  473,  the  plaintiff  put  in  evi- 
dence a  judgment  roll  in  which  it  was  neither  a  party  nor  privy,  to 


JOINT   TORTFEASORS.  6oi 

show  that  Sweet  had  made  an  election  therein  which  bound  him, 
and  consequently  the  defendant  Beale.  This  court  held  the  judg- 
ment conclusively  proved  the  election. 

These  views  are  fatal  to  the  maintenance  of  this  present  action 
for  a  conversion  against  the  defendant.  If  the  i)laintiffs  herein  had 
commenced  their  action  against  this  defendant,  based  upon  an  im- 
plied promise  by  him  to  pay  the  value  of  the  property  as  upon  a  sale 
thereof  to  him  in  connection  with  the  defendants  in  the  other  suit, 
a  totally  different  question  would  have  arisen,  upon  which  we  ex- 
press no  opinion.  The  plaintiffs  in  such  action  might  urge  that  it 
ought  to  be  sustained  upon  the  ground  that  the  defendant  herein  was 
one  of  the  wrong-doers  in  the  transaction  resulting  in  the  taking  of 
this  property,  and  that  the  tort  therein  committed  by  him  and  the 
defendants  in  the  other  suit  was  a  joint  and  several  one,  for  which 
they  were  jointly  and  severally  liable ;  and  when  the  tort  was  waived 
by  the  plaintiffs,  and  an  implied  contract  was  based  upon  such 
waiver,  the  contract  implied  was  of  the  same  nature  as  the  tort  which 
was  waived,  and  was  a  joint  and  several  contract.  Being  a  joint 
and  several  contract,  an  action  against  the  other  defendants  upon 
their  several  contract,  and  a  recovery  of  judgment  without  satisfac- 
tion, would  constitute  no  defense  to  an  action  against  this  defendant, 
based  upon  his  several  and  implied  contract  to  pay  the  value  of  the 
property.  There  may  be  some  authority  for  this  course  of  reason- 
ing. City  Nat.  Bank  v.  National  Park  Bank,  32  Hun  105.  We 
neither  affirm  nor  deny  its  soundness,  and  only  refer  to  it  in  order  to 
repel  any  possible  implication  that  in  this  decision  we  have  held  that 
no  such  action  could  be  maintained.  But,  even  if  such  an  action 
would  lie,  we  cannot  turn  the  present  one  for  a  conversion  of  the 
property  into  one  to  recover  the  value  thereof  as  upon  a  sale  to 
defendant.  People  v.  Dennison,  84  N.  Y.  272 ;  Romeyn  v.  Sickles, 
108  N,  Y.  650,  15  N.  E.  Rep.  698.  As  to  the  other  ground  of  ob- 
jection taken  by  the  plaintiffs,  we  think  the  evidence  was  admis- 
sible, for  the  reasons  stated  by  the  learned  judge  at  general  term. 
Upon  the  whole  case  we  are  satisfied  that  no  error  was  committed 
prejudicial  to  the  plaintiffs,  and  the  judgment  should  be  affirmed, 
with  costs.    All  concur ;  Ruger,  C.  J.,  and  Andrews,  J.,  in  result.^ 

'Contra,  Huffman  v.  Hughlett  &  Pyatt,  11  Lea  (Tenn.)  549  (1883),  the 
court  saying  (p.  554)  :  "If  the  action  be  in  contract,  it  is  not  strictly  a  waiver 
of  the  tort,  for  the  tort  is  the  very  foundation  of  the  action,  but,  as  Nicholson, 
C.  J.,  has  more  accurately  expressed  it,  a  waiver  of  the  'damages  for  the  con- 
version,' and  a  suing  for  the  value  of  the  property.  Kirkman  v.  Philips,  7 
Heis.  222,  224.  It  is  simply  an  election  between  remedies  for  an  act  done, 
leaving  the  rights  of  the  injured  party  against  the  wrongdoers  unimpaired 
until  he  has  obtained  legal  satisfaction.  It  it  were  otherwise,  the  suing  of  any 
one  of  a  series  of  tortfeasors,  even  the  last,  on  the  implied  promise,  where 
there  was  clearly  no  contract,  would  give  him  a  good  title  and  release  all 
the  others.  No  authority  has  been  produced  sustaining  such  a  conclusion, 
and  we  are  not  inclined  to  make  one." 


602  WAIVER   OF   TORT. 

FLOYD  V.  BROWNE,  Administrator. 
I  Rawle  (Pa.)  121. — 1829. 

Action  of  assumpsit  for  money  had  and  received,  brought  by  the 
plaintiff  in  error,  John  Floyd,  against  the  defendant  in  error,  Aquilla 
A.  Browne,  administrator  de  bonis  non  cum  testamento  annexo  of 
Thomas  Truxton,  deceased,  who,  in  his  lifetime  was  high  sheriff  of 
the  city  and  county  of  Philadelphia. 

The  following  were  the  circumstances  upon  which  the  plaintiff's 
claim  was  founded :  To  March  term,  1819,  of  the  district  court,  Caleb 
Cridland  issued  a  Heri  facias  against  a  certain  George  Green.  The 
sheriff  levied  upon  goods  belonging  to  the  plaintiff  (Floyd),  and 
sold  them  for  the  gross  sum  of  $1,235.94.  In  making  the  levy  Ben- 
jamin Cridland,  Robert  Black,  Peter  Care,  Jr.,  Stephen  E.  Fotterall 
and  George  F.  Alberti,  assisted  the  said  Caleb  Cridland.  Floyd 
brought  an  action  of  trespass  z'i  et  armis,  against  Benjamin  Cridland, 
and  the  others  who  assisted  him  in  the  levy,  and  obtained  a  verdict 
and  judgment  for  $2,000  against  Caleb  and  Benjamin  Cridland,  and 
signed  judgment  by  default  against  Robert  Black,  Peter  Care,  Jr., 
Stephen  E.  Fotterall  and  George  F.  Alberti,  the  other  defendants. 
Execution  was  issued  against  all  these  defendants,  and  the  money 
made  out  of  the  goods  and  chattels  of  Fotterall.  Fotterall  removed 
th  record  by  writ  of  error  to  the  supreme  court ;  where,  on  the  2d 
of  April,  1821,  the  judgment  was  reversed  as  to  all  the  defendants 
except  Caleb  and  Benjamin  Cridland,  and  the  execution  as  to  all. 
(See  6  Serg.  &  Rawle  412.)  On  the  19th  of  May,  1821,  Floyd 
brought  this  action  against  the  sheriff  to  recover  the  proceeds  of  the 
sale  of  his  goods  wrongfully  taken  in  execution.  The  defendant 
pleaded  non  assumpsit  and  payment,  and  a  special  plea  of  former  re- 
covery, which  set  forth  the  proceedings  in  the  district  and  supreme 
court,  above  stated,  in  the  suit  brought  by  Floyd  against  Caleb  Crid- 
land and  others.  To  this  plea  the  plaintiff  demurred,  and  the  court 
below  gave  judgment  for  the  defendant  on  the  demurrer.  The 
plaintiff  thereupon  took  out  a  writ  of  error. 

Gibson,  C.  J. — A  plaintiff  is  not  compelled  to  elect  between  ac- 
tions that  are  consistent  with  each  other.  Separate  actions  against 
a  number  who  are  severally  liable  for  the  same  thing,  or  against  the 
same  defendant  on  distinct  securities  for  the  same  debt  or  duty  are 
consistent,  being  concurrent  remedies.  Trespass  is,  in  its  nature, 
joint  and  several ;  and  in  separate  actions  against  joint  trespassers, 
being  consistent  with  each  other,  nothing  but  actual  satisfaction  by 
one  will  discharge  the  rest.  So  far  the  law  is  clear.  Here,  then,  the 
plaintiff  had  impleaded  six  jointly,  and  obtained  judgment,  but  with- 
out actual  satisfaction  against  two,  and  he  now  brings  indebitatus 
assumpsit  against  a  seventh  for  the  price  obtained  for  the  goods 
which  were  the  subject  of  the  trespass.    The  point  of  defense  mainly 


JOINT   TORTFEASORS.  603 

relied  on  is  that  the  plaintiff's  property  in  the  goods  was  divested  by 
the  former  recovery ;  and,  consequently,  that  he  cannot  maintain  an 
action  founded  exclusively  on  property  in  the  goods  or  the  price  of 
them.  It  is  not  easy  to  see  how  this  is  to  be  answered.  It  will  not 
do  to  say  that  the  jM'cscnt,  though  differing  in  form,  is  in  substance 
an  action  to  recover  satisfaction  for  a  trespass,  and  consequently  that 
the  form  is  immaterial.  There  is,  in  fact,  a  substantial  difference. 
The  cause  of  action  in  trespass  and  in  assumpsit  is  as  distinct  in  sub- 
stance as  the  actions  are  different  in  form.  Trespass  lies  only  for 
an  injury  to  the  possession ;  and  damages  are  recoverable  for  the 
taking,  which  is  the  gist  of  the  action,  separately  from  the  value  of 
the  goods,  the  asportation  being  a  circumstance  merely  of  aggrava- 
tion. Assumpsit  lies  for  money  received  as  the  price  of  the  goods, 
to  the  plaintiff's  use,  the  detention  of  which  is  the  gist  of  the  action, 
the  trespass  being  waived,  and  not  entering  at  all  into  the  estimate 
of  the  damages,  it  being  well  settled  that  nothing  is  recoverable  be- 
yond what  was  actually  received.  If  there  were  no  difference  as  to 
substance,  and  the  form  of  the  remedy  were  immaterial,  a  plaintiff 
might  have  several  actions  of  assumpsit  against  those  who  had  joint- 
ly sold  his  goods,  on  the  ground  of  their  having  been  obtained  by 
a  trespass,  although  the  promise  which  the  law  implies  from  a 
joint  receipt  of  the  price  is  also  joint.  He  certainly  might  just  as 
well  proceed  severally  in  assumpsit  against  all,  as  in  trespass  against 
some,  and  in  assumpsit  against  the  rest.  But  there  is  this  further 
substantial  difference  that  the  action  in  the  one  case  is  founded  on 
a  contract  which  survives,  and  in  the  other,  on  a  tort,  which,  at  the 
common  law,  does  not.  In  fact,  the  attempt  here  is  to  make  an  ad- 
ministrator liable.  A  plaintiff  must  proceed  consistently.  He  can- 
not waive  a  part  of  the  injury  to  give  form  to  his  action  and  resume 
it  to  give  substance.  In  waiving  the  trespass  he  dispenses  with  what- 
ever could  give  character  to  the  injury  as  such,  and  treats  as  a  sub- 
stantive and  distinct  cause  of  action  what  would,  in  an  action  of  tres- 
pass proper,  be  merely  a  circumstance  of  aggravation.  In  an  action 
of  assumpsit,  therefore,  he  cannot  claim  the  benefit  of  any  of  the  in- 
cidents or  attributes  which  appertain  to  an  action  of  trespass.  The 
consequence  is,  that  the  plaintiff  here  having  recovered  in  trespass, 
cannot  again  recover  in  an  action  which  is  not  a  concurrent  remedy ; 
a  recovery  in  trespass  producing  the  same  bar  that  is  produced  by  a 
recovery  in  trover,  against  a  recovery  in  assumpsit  of  the  price  of  the 
same  goods.  Judgment  affirmed. 


604  WAIVER   OF   TORT. 

iv.  Injured  Tenants  in  Common. 

TANKERSLEY  v.  CHILDERS  et  al. 

23  Ala.  781.-1853. 

Phelan,  J. — The  action  was  assumpsit  by  three  of  the  Qiilders 
to  recover  of  the  defendant  their  portion  of  the  proceeds  of  the  cot- 
ton which  was  sold  by  him  as  constable  under  an  execution  against 
David  Childers,  who,  together  with  one  Smyth  and  the  plaintiffs, 
was  a  tenant  in  common  of  the  cotton  which  he  sold.  The  right  of 
the  plaintiffs  to  waive  the  tort,  the  conversion,  and  sue  in  assumpsit 
is  not  denied.  But  it  is  insisted  by  plaintiff,  in  error,  that  in  this 
form  of  action  all  the  parties  in  interest  must  join  in  action,  and  that 
they  cannot  sue  if  any  number  less  than  all  join  as  plaintiffs.  This 
question  of  the  right  of  any  one  tenant  in  common  to  waive  a  tort 
and  sue  separately  in  assumpsit  was  considered  in  the  case  of  Smyth 
V.  Tankersley,  20  Ala.  212,  when  we  held  that  such  right  existed. 
The  general  doctrine  on  this  subject  of  non-joinder  of  plaintiffs,  or 
the  right  to  sue  separately  where  the  tort  is  waived,  and  parties  sue 
in  assumpsit,  has  since  received  a  careful  examination  anew  in  the 
case  of  Smith's  Ex'rs  v.  Wiley,  22  Ala.  396.  The  court  in  that  case 
arrive  at  the  conclusion,  as  the  result  of  sound  reason  and  the  best 
authorities,  that  when  a  conversion  has  been  committed  against  sev- 
eral, all  the  parties  in  interest  waiving  the  tort  may  join,  if  they  like, 
in  an  action  of  assumpsit;  but,  that  they  are  under  no  legal  compul- 
sion to  do  so,  for  that  any  number  less  than  all,  or  any  separate  one, 
may  bring  assumpsit  for  his  or  their  share  of  the  interest  without 
joining  the  rest.     *     *     *     *^ 


b.  Particular  Applications. 
i.  Fraud. 

CROWN  CYCLE  CO.  v.  BROWN. 

39  Ore.  285. — 1901. 

WoLVERTON,  J. — The  amended  complaint  herein,  omitting  formal 
allegations,  runs  as  follows  :  "That  on  or  about  the  ist  day  of  March, 
1896,  the  plaintiff,  at  the  special  instance  and  request  of  the  defend- 
ant, sold  and  delivered  to  defendant  certain  goods,  wares,  and  mer- 

'  But  sec  Gilmorc  ct  al.  v.  Wilbur  ct  al.,  12  Pick.  (Mass.)  120  (1831),  the 
court  saying  (p.  124)  :  "Tenants  in  common  not  only  may,  but  must  join  in 
an  action  for  any  entire  injury  done  to  the  common  ])roperty.  And  this 
principle  is  equally  applicable  to  an  action  for  the  tort,  and  to  an  action  of 
assumpsit  when  the  tort  is  waived." 


FRAUD.  C05 

chandise,  of  the  reasonable  value  of  $12,234,"  The  answer  denies 
that  the  plaintiff  sold  or  delivered  to  the  defendant  any  goods,  wares, 
or  merchandise  whatever,  except  under  a  special  contract  of  purchase 
and  sale  between  them,  which  provided  for  the  payment  of  a  stipu- 
lated price  at  a  time  certain,  which  had  not  elapsed  at  the  com- 
mencement of  the  action.  It  is  further  alleged  that  the  goods,  wares, 
and  merchandise  mentioned  in  the  complaint  consist  of  three  lots 
of  bicycles,  which  were  purchased  by  the  defendant  from  the  plain- 
tiff under  a  special  contract  as  to  price,  terms,  and  time  of  payment ; 
and  that,  in  pursuance  of  the  terms  of  the  contract,  the  defendant 
executed  and  delivered  to  the  plaintiff,  as  and  for  the  whole  of  the 
purchase  price  of  said  bicycles,  certain  bills  of  exchange,  which  were 
received  and  accepted  by  plaintiff,  and  are  still  held  and  retained 
by  it.  The  plaintiff  replied  that  the  goods  were  procured  and  said 
contract  was  induced  through  the  fraudulent  and  deceitful  repre- 
sentations of  the  defendant  as  to  the  condition  of  his  credit ;  that 
the  said  bills  of  exchange  were  taken  and  accepted  under  those  con- 
ditions, and  are  wholly  worthless.  There  was  a  demurrer  interposed 
to  the  reply,  and  a  motion  to  strike  out  the  affirmative  averment, 
which  were  both  overruled.  The  verdict  and  judgment  being  in  fa- 
vor of  the  plaintiff,  the  defendant  appeals.     *     *     *     * 

The  most  important  question  attending  this  controversy  is  whether 
the  plaintiff  can  waive  the  tort  and  sue  in  assumpsit  for  goods  sold 
on  a  quantum  valcbat.  Upon  this  question  the  authorities  are  in 
hopeless  conflict,  and  we  will  make  no  attempt  to  reconcile  or  dis- 
tinguish them.  The  action  is  for  the  reasonable  value  of  the  bicycles, 
not  for  an  agreed  price,  so  that  there  is  no  attempt  to  sue  upon  the 
contract,  which  it  is  alleged  was  fraudulently  obtained,  or  to  adopt 
any  of  its  terms  as  controlling  in  any  particular  or  binding  upon  the 
parties  to  the  action.  Fraud  having  vitiated  the  contract,  and  ren- 
dered it  voidable,  at  the  election  of  the  plaintiff',  it  had  proceeded  by 
an  action  in  no  wise  adapted  to  its  enforcement,  and  thereby  it  would 
seem  to  logically  follow  that  it  has  proceeded  in  its  disaffirmance. 
At  any  rate,  the  action  which  it  has  employed  is  wholly  inconsistent 
with  the  existence  of  the  specific  contract,  so  that  it  cannot  be  said 
that  by  suing  in  assumpsit  it  has  affirmed  any  contract  that  it  may 
have  had  with  the  defendant,  except  the  one  which  may  be  implied 
from  the  acts  of  the  parties.  In  a  leading  case  upon  the  subject 
(Roth  V.  Palmer,  27  Barb.  652,  656),  Hogeboom,  J.,  discussing  the 
effect  of  the  waiver  of  the  tort,  says :  "Does  it  restore  the  express 
contract  Mdiich  has  been  repudiated  for  the  fraud,  or  does  it  leave 
the  parties  in  the  same  condition,  as  if  no  express  contract  had  been 
made,  to  such  relations  as  result,  by  implication  of  law,  from  the 
delivery  of  the  goods  by  the  plaintiffs  and  their  possession  by  the  de- 
fendant? On  this  subject  the  decisions  are  conflicting,  but  I  think 
the  weight  of  authority,  as  well  as  the  true  and  logical  effect  of  the 
various  acts  of  the  parties,  is  to  leave  the  parties  to  stand  upon  the 
rights  and  obligations  resulting  from  a  delivery  and  the  possession 
of  the  goods."    The  proposition  is  supported  by  Wilson  v.  Force,  6 


6o6  WAIVER    OF    TORT. 

Johns.  *iio,  Pierce  v.  Drake,  15  Johns.  475,  and  other  New  York 
authorities,  as  well  as  by  Dietz's  Assignee  v.  Sutcliffe,  80  Ky.  650, — 
a  case  in  all  particulars  like  the  one  at  bar.  To  the  same  purpose, 
see  Pom,  Code  Rem,  (3d  ed.),  §  571 ;  Bliss,  Code  PI.  (3d  ed.),  §  15. 
Whether  the  vendor  may  waive  the  tort  until  his  artful  vendee  has 
disposed  of  the  goods  and  converted  them  into  money  is  another 
phase  of  the  question,  touching  which  the  authorities  are  not  agreed. 
There  are  many  of  great  weight  holding  that  he  can.  Galvin  v.  Mill- 
ing Co.,  14  Mont,  50S,  2)7  P^c.  366;  Lehmann  v.  Schmidt,  87  Cal. 
15,  25  Pac.  161  ;  Roberts  v.  Evans,  43  Cal.  380;  Norden  v.  Jones,  33 
Wis.  600 ;  Assurance  Co.  v.  Towle,  65  Wis.  247,  26  N.  W.  104 ; 
Downs  V.  Finnegan,  58  Minn.  112,  59  N.  W.  981  ;  Gordan  v.  Bruner, 
49  Mo.  570 ;  McCombs  v.  Church  &  Co.,  9  Lea  81  ;  Terry  v.  Munger, 
121  N.  Y.  161,  24  N.  E.  2'j2\  and  Challiss  v.  Wylie,  35  Kan.  506,  11 
Pac.  438,  We  are  inclined  to  adopt  the  doctrine  of  the  foregoing 
authorities  as  establishing  the  better  rule,  namely,  that  a  vendor  who 
has  been  induced  by  fraud  to  part  with  his  goods  to  a  purchaser  on 
a  time  consideration  may,  before  the  same  becomes  due,  sue  in  as- 
sumpsit for  their  reasonable  value,  and  this  before  the  vendee  has 
converted  the  same  into  money.  We  may  say  that  we  are  impelled 
somewhat  to  this  conclusion  by  a  cause  of  some  analogy  heretofore 
decided  by  this  court.  We  refer  to  Gove  v.  Milling  Co.,  19  Or.  363, 
24  Pac.  521,  wherein  it  was  held  that  "when  one  performs  services 
for  another  on  a  special  contract,  and  for  any  reason,  except  a  vol- 
untary abandonment,  fails  to  fully  comply  with  his  contract,  and 
the  services  and  material  have  been  of  value  to  him  for  whom  they 
were  rendered  and  furnished,  he  may  recover  for  such  material  and 
services  their  reasonable  value,  after  deducting  therefrom  any  dam- 
ages the  party  for  whom  such  materials  were  furnished  and  services 
were  rendered  has  sustained  by  reason  of  such  failure."  The  quota- 
tion is  from  the  headnote. 

There  was  no  attempt  on  the  part  of  the  plaintifif,  prior  to  the  in- 
stitution of  the  action,  to  formally  rescind  the  contract,  nor  was 
there  any  ofTer  to  return  or  to  surrender  the  acceptances  received  in 
consideration  of  the  sale,  but  the  plaintiff  proffered  to  return  them 
in  its  reply  and  at  the  trial.  As  against  the  right  of  recovery  by  this 
method,  it  is  urged  that  no  action  accrued  to  the  plaintiff  for  the 
reasonable  value  of  the  goods  until  the  specific  contract  was  rescind- 
ed, and  there  was  an  offer  to  return  the  acceptances,  and  that  the 
present  action  was  prematurely  brought,  to  say  the  least.  There  is 
ample  authority,  however,  for  proceeding  by  the  method  adopted. 
Ryan  v.  Brant,  42  111.  78 ;  Nichols  v.  Michael,  23  N.  Y.  264 ;  Wig- 
and  V.  Sichel,  33  How.  Prac.  174;  Claflin  v.  Taussig,  7  Hun  223. 
The  authorities  seem  to  be  uniform  that,  where  the  action  is  for  the 
recovery  of  specific  ])roperty,  the  tender  of  return  of  such  accept- 
ances should  be  made  as  a  condition  precedent  to  the  bringing  of  the 
action,  as  the  vendee  must  be  placed  in  sialw  quo  before  the  vendor 
is  entitled  to  take  it  from  him.  consequently  he  has  no  right  of  action 
until  the  tender  is  made ;  but  there  is  a  distinction  recognized,  by 


FR<\UD.  (607J 

these  same  authorities,  that  where  the  party  proceeds  in  trespass, 
or  on  a  quantum  valcbat,  the  rule  does  not  apply.  Doane  v.  Lock- 
wood,  115  111.  490,  4  N.  E.  500.  These  considerations  affirm  the 
judgment  of  the  court  below  ;  and  it  is  so  ordered.^ 


KELLOGG  &  CO.  v.  TURPIE. 

93  Iix.  265.-1879. 

Assumpsit. 

Mr.  Justice  Sheldon. — *  *  *  *  The  declaration  clearly 
enough  presents  a  case  of  fraud,  entitling  the  plaintiffs  to  rescind  the 
contract  of  sale  made  on  a  credit,  and  the  question  which  is  presented 
is  whether,  upon  making  such  rescission  of  the  contract,  the  plain- 
tiffs may  bring  this  action  of  assumpsit  to  recover  what  the  goods 
were  reasonably  worth,  or  are  restricted  to  an  action  in  tort,  of  trover 
or  replevin. 

Where  such  a  fraudulent  contract  is  rescinded  by  the  vendor,  as  , 
it  may  be,  the  contract  is  treated  as  a  nullity,  and  the  defendant   \ 
considered  not  as  a  purchaser  of  the  goods,  but  as  a  person  who  had    \ 
tortiously  got  possession  of  them,  and  the  form  of  action  in  such 
case  is  in  trover  or  replevin  for  the  tort.    But  this  action  of  assump- 
sit proceeds  upon  the  ground  of  a  contract  made  between  the  par- 
ties and  existing  at  the  time  of  action  brought,  and  that  the  goods 
were  rightly  obtained  by  purchase.     Now\  the  only  contract  appear- 
ing by  the  declaration  between  the  parties  is  an  express  contract 
for  the  sale  of  the  goods  upon  credit.     The  time  of  credit  had  not 
expired   when   the   suit   was   commenced,   and   it   was   prematurely 
brought  on  the  contract  which  was  actually  made.     Where  there  is 
an  express  contract  the  law  will  not  imply  one.     It  is  not  admissible 
to  say  there  was  a  different  implied  contract  where  there  was  an 
express  one. 

Nor  can  the  contract  be  rescinded  in  part,  and  affirmed. as  to  the 
residue.  The  plaintiffs,  if  they  treat  the  transaction  as  a  contract 
at  all,  must  take  the  contract  altogether,  and  be  bound  by  its  speci- 
fied terms.  By  bringing  this  action,  plaintiffs  affirm  the  contract 
made  between  them  and  the  defendant.  This  we  believe  to  be  the 
doctrine  upon  the  subject  as  resting  upon  principle  and  established 
by  the  weight  of  authority.  In  such  cases,  says  Chitty,  in  his  work 
on  Contracts,  vol.  i,  pp.  569-70,  "The  vendor  must  either  affirm  or 
disaffirm  the  contract  as  a  whole,  And  therefore,  where  goods  are 
fraudulently  procured  to  be  sold  on  credit,  the  vendor  cannot  sue 
for  the  price  before  the  credit  has  expired,  but  he  must  sue  in  tort 
for  the  value  of  the  goods,  for  by  declaring  for  the  price  he  affirms 
the  contract ;  and  where  there  is  an  express  contract  the  law  will 

*  For  a  case  of  waiver  of  fraud,  see  also.  Limited  Invest.  Assoc,  v.  Glen- 
dale  Assoc,  ante,  p.  588. 


6o8  WAIVER   OF   TORT. 

not  imply  any  other."  To  the  same  effect  is  Story  on  Sales,  sec. 
446,  that  "Where  goods  have  been  obtained  through  the  fraud  or 
misrepresentation  of  the  vendee,  the  vendor  may  either  affirm  the 
sale  or  rescind  it  and  reclaim  the  goods.  If  he  elect  to  rescind  he 
must,  as  we  have  seen,  do  so  within  a  reasonable  time,  and  must  take 
care  to  do  nothing  affirmatory  of  the  contract,  or  his  right  to  rescind 
will  be  lost.  And  in  such  case  he  should  sue  in  trover  or  replevin 
for  the  goods,  treating  the  whole  contract  as  utterly  nullified  by  the 
fraud,  and  he  should  be  careful  not  to  bring  assumpsit,  since,  as  the 
foundation  of  this  action  is  the  promise  of  the  vendee,  the  contract 
is  thereby  directly  affirmed,  and  his  rights  will  depend  upon  the 
contract  solely,"  In  full  support  of  the  text  of  these  writers  and 
the  views  we  have  expressed,  are  Read  v.  Hutchinson,  3  Camp.  351  ; 
Ferguson  v.  Carrington,  9  B.  &  Cr.  59,  17  E.  C.  L.  330;  Strutt  v. 
Smith,  I  C,  M.  &  R.  311;  Selway  v.  Fogg,  5  M.  &  W.  83.  In 
Allen  V.  Ford,  19  Pick.  217,  the  same  doctrine  is  declared,  where 
the  court  say :  "If  the  plaintiff  rescinds  the  contract,  as  he  would 
have  a  right  to  do,  the  defendant  failing  to  perform  the  condition 
ot  sale,  his  proper  remedy  for  a  conversion  of  the  property  is  an 
action  of  trover.  And  he  cannot  waive  the  tort  and  recover  the 
value  of  the  goods  in  an  action  of  assumpsit.  In  such  a  form  of 
action  the  contract  is  admitted  to  exist  at  the  time  of  the  action 
brought,  and  where  there  is  an  express  contract  the  law  will  not 
imply  one."  To  like  effect  are  Delton  v.  Hull,  47  Md.  1 12 ;  Whit- 
lock  V.  Heard,  3  Rich.  88. 

The  decisions  in  New  York  seem  to  be  in  favor  of  the  mainte- 
nance of  such  an  action  as  the  present.  In  Roth  v.  Palmer,  27  Barb. 
652,  the  court,  speaking  upon  the  subject  of  the  election  which  the 
vendor  has,  in  the  case  of  a  fraudulent  purchase  of  goods,  to  sue 
in  assumpsit  rather  than  tort,  say :  "Originally,  and  particularly  in 
the  English  courts  and  in  Massachusetts,  a  distinction  was  attempted 
to  be  established  as  to  the  cases  in  which  the  plaintiff  should  be 
allowed  his  election,  and  to  confine  it  to  cases  where  the  fraudulent 
purchaser  had  parted  with  the  goods  and  received  money  on  his 
sale  of  the  same,  which  the  courts  allowed  the  plaintiff  to  treat  as 
money  had  and  received  to  the  plaintiff's  use.  (Bennett  v.  Francis, 
2  Bos.  &  Pul.  550,  555  ;  Jones  v.  Hoar,  5  Pick.  285.)  But  the  cases 
in  our  own  courts  recognize  no  such  distinction.  They  seem  to 
allow  it  to  be  done  in  all  cases  where  the  plaintiff  would  have  been 
allowed  to  pursue  his  remedy  in  tort,  and  the  decisions  in  this  court 
have  been  too  numerous  and  too  uniform  to  allow  us  now  to  set  up 
any  distinction  or  limitation,  even  if  it  were  desirable  on  principle." 

But  there  is  no  course  of  decisions  in  this  State  which  requires 
of  us  any  departure  from  principle  and  the  prevailing  authority  upon 
this  subject.  This  court  has  recognized  the  distinction  above,  which 
the  New  York  courts  would  seem  not  to  do,  and  has  held  that  where 
goods  have  been  obtained  tortiously,  in  order  that  assumpsit  can 
be  maintained  it  is  essential  that  the  wrongdoer  should  have  sold 
the  goods,  or  in  some  way  converted  them  into  money  or  money's 


FRAUD.  609 

worth.  Creel  v.  Kirkham,  47  III.  344;  Johnston  v.  Salisbury,  61 
id.  316.  In  Wigand  v.  Sichcl,  3  Keyes,  N.  Y.  Court  of  Appeals 
Rep.  120,  the  court,  although  sustaining  the  action  of  assumpsit 
in  a  case  like  the  present,  do  so  upon  a  different  ground  from  that 
in  Roth  V.  Palmer.  "It  is  not  accurate,"  say  the  court,  in  the  former 
case,  "to  say  that  the  plaintiffs  sought  to  avoid  the  contract  of  sale. 
It  is  the  credit  only  that  is  sought  to  be  avoided.  It  was  a  sale 
of  goods  which  the  plaintiffs,  by  their  action,  affirmed.  It  was, 
however,  a  sale  where  the  credit  was  obtained  by  fraud,  and  in 
law  amounted  to  a  sale  for  cash.  In  stating  it  in  their  complaint, 
therefore,  to  be  a  sale,  and  for  cash,  the  plaintiffs  but  stated  the  con- 
tract according  to  its  legal  effect.  They  did  not  seek  to  avoid  the 
contract  of  sale.  They  endeavored,  merely  by  proof  of  the  act  of 
fraud,  to  reduce  the  transaction  to  a  cash  sale."  We  have  held 
that  where  a  party  rescinds  a  contract  on  the  ground  of  fraud,  such 
rescission  must  be  total ;  a  portion  of  the  contract  cannot  be  affirmed 
and  a  portion  repudiated.  Bowen  v.  Schuler,  41  111.  193 ;  Ryan  v. 
Brant,  42  id.  78 ;  King  v.  Mason,  42  id.  223.  We  adopt  with  ap- 
proval the  following  language  of  Pillsbury,  J.,  who  delivered  the 
opinion  of  the  Appellate  Court  in  the  case  at  bar,  in  comment  on 
this  case  of  Wigand  v.  Sichel :  "The  goods  were  procured  by  a 
contract,  though  fraudulent,  one  of  the  constituent  parts  of  which 
was  that  time  should  be  given  for  the  payment  thereof.  With  ref- 
erence to  this  credit  the  amount  to  be  paid  for  the  goods  was  deter- 
mined, and  we  are  unable  to  see  how  the  credit  was  obtained  by 
fraud  distinct  from  the  other  terms  of  sale,  or  how  the  credit 
can  be  avoided,  or  the  sale  be  affirmed,  with  a  different  time  of 
payment  fixed  without  the  consent  of  the  purchaser.  If  in  such 
case  the  credit  is  the  only  part  of  the  contract  resting  upon  the  fraud, 
and  that  can  be  severed  from  the  other  terms  of  sale,  then  it  nec- 
essarily follows  that  the  credit  is  the  only  portion  of  the  contract 
that  can  be  repudiated,  leaving  the  contract  of  sale  in  full  force  in 
other  respects,  or  as  the  New  York  court  expresses  it,  'it  becomes 
a  sale  for  cash.'  If,  then,  the  legal  effect  of  the  contract  after  such 
disaffirmance  is  a  sale  for  cash,  the  vendee  is  in  no  sense  a  wrong- 
doer, and  the  defrauded  vendor  cannot  thus  treat  him  and  reinvest 
himself  with  the  title  to  the  goods,  which,  we  believe,  is  not  con- 
sidered good  law  anywhere."  We  regard  the  New  York  decisions 
upon  the  subject  as  variant  from  the  current  of  authority,  and  we 
are  not  satisfied  with  the  principles  upon  which  they  are  rested. 

The  difficulty  in  the  way  of  this  suit  is  not  avoided  by  saying,  as 
appellants'  counsel  does,  that  the  action  is  not  brought  for  the  agreed 
price  of  the  goods, but  for  the  price  the  goods  were  reasonably  worth, 
and  therefore  the  special  contract  which  was  made  is  not  affirmed, 
because  not  sued  upon,  but  that  the  suit  is  upon  an  implied  contract 
to  pay  what  the  goods  were  reasonably  worth.  The  rule  as  stated 
in  some  of  the  authorities  cited  is,  that  where  there  is  an  express 

Woodruff's  Cases — 39 


(6lO.'  WAIVER   OF   TORT. 

contract  the  law  will  not  imply  one.  As  said  by  Parke,  B..  in  Strntt 
V.  Smith,  supra,  "It  is  clear  that  the  plaintiffs  cannot  avail  them- 
selves of  the  defendant's  fraud  so  as  to  rescind  the  contract  and 
substitute  a  new  contract  of  sale  on  different  terms.  *  *  *  They 
might,  possibly,  on  the  evidence,  have  maintained  trover,  on  the 
ground  that  the  fraud  vitiated  the  contract,  but  if  they  treat  the 
transaction  as  a  contract  at  all,  they  must  take  the  contract  alto- 
gether, and  be  bound  by  the  specified  terms."  The  earlier  case  of 
De  Symons  v.  Minchwich,  i  Esp.  430,  cited  as  in  favor  of  this 
action,  is  overruled  by  the  later  English  decisions. 

Other  cases  cited  by  appellants'  counsel  are  where  goods  obtained 
uoder  a  fraudulent  contract  had  been  disposed  of,  and  it  was  held 
that  assumpsit  would  lie  for  the  money  received;  or  where  money 
had  been  received  upon  such  a  contract,  and  upon  its  rescission 
assumpsit  for  money  had  and  received  M^as  held  sustainable ;  or 
where  some  security,  as  a  bill  or  note,  payable  at  a  future  day,  had 
been  taken  in  payment  for  goods  which  had  been  sold,  and  the  secur- 
ity turned  out  to  be  worthless,  and  an  action  was  held  to  lie  immedi- 
ately for  the  price  of  the  goods  sold,  on  the  ground  that  there  had 
been  no  payment  made  for  them. 

There  is  a  plain  distinction  between  all  such  cases  and  the  one 
now  before  us. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed.^ 


ii.  Money  Procured   Wrongfully   and  Passed   to   an   Innocent   Holder. 

STEPHENS  v.  BOARD  OF  EDUCATION  OF  BROOKLYN. 

79  N.  Y.  183.— 1879. 

Andrews,  J. — There  is  no  dispute  as  to  the  material  facts.  On 
and  prior  to  the  i8th  of  December,  1871,  one  Gill  was  a  member  of 
the  board  of  education  of  the  city  of  Brooklyn,  and,  as  attorney 

*  Accord,  Bedier  v.  Fuller,  ic6  Mich.  342  (1895),  the  court  saying  (p.  348)  : 
"We  think  the  case  is  ruled  by  Galloway  v.  Holmes,  i  Doug.  (Mich.)  330,  and 
Emerson  v.  Spring  Co.,  100  Mich.  127,  58  N.  W.  659.  One  who  has  been 
induced  by  the  fraudulent  representations  of  another  to  enter  into  a  contract 
may  affirm  or  disaffirm  it.  If  he  disaffirm,  and  assert  the  fraud,  he  cannot, 
in  the  same  action,  turn  it  into  an  action  of  assumpsit,  and  recover  as  for  an 
implied  promise.  As  was  said  in  Emerson  v.  Spring  Co.,  supra:  'It  is  sug- 
gested that,  as  a  fraud  was  perpetrated  upon  the  creditor,  he  would  have  the 
right  to  waive  the  tort  and  sue  in  assumpsit ;  but  we  are  aware  of  no  case 
which  authorizes  a  party  to  first  turn  a  contract  into  a  tort,  and  then  shift 
it  back  into  the  form  of  a  new  contract,  other  than  the  original  one.'  The 
cases  above  cited  are  so  squarely  in  point  that  we  deem  further  discussion 
of  the  question  unnecessary.  The  judgment  below  must  be  affirmed."  In 
t8o7  nn  act  was  passed  permitting  fraud  to  be  waived  and  assumpsit  to  be 
brought.     Mich.  Comp.  Laws,  §  10,421.     See  Anderson  Co.  v.  Pungs,  95  N. 

W.  985  (1903). 


RIGHTS    OF    INNOCENT    HOLDER.  6ll 

for  said  board,  received  $3,600.84,  the  money  of  the  board,  which  he 
wrongfully  converted  and  appropriated  to  his  ovv^n  use.  Soon  after 
the  date  mentioned,  he  procured  from  the  plaintiff,  on  a  mortgage 
forged  by  him  on  the  property  of  a  third  person,  $4,129.34  in  a  check 
of  the  plaintiff,  which,  on  the  21st  of  December,  1871,  he  de]:)OS- 
ited  in  a  bank,  to  his  credit,  and  on  the  same  day  drew  his  ovv-n 
check  on  the  bank  in  which  the  deposit  was  made,  to  the  order  of 
the  board  of  education  for  the  amount  of  the  money  fraudulently  ap- 
propriated by  him  and  delivered  the  same  to  the  board,  and  the  board 
thereupon  credited  the  check  to  Gill  in  discharge  of  his  debt.  The 
check  was  paid  in  due  course,  and  the  money  received  thereon  was 
used  by  the  board  in  its  business.  The  plaintiff,  about  two  months 
thereafter,  ascertained  that  the  mortgage  received  from  Gill  was  a 
forgery,  and  then  demanded  from  the  defendant  the  money  received 
from  Gill.  The  defendant  had  no  notice,  when  it  received  the  check 
from  Gill,  of  the  fraud  by  which  he  obtained  the  money  of  tiie 
plaintiff,  nor  had  it  any  information  as  to  the  source  from  which 
the  money  to  his  credit  in  the  bank  was  derived.  The  first  informa- 
tion which  the  defendant  had  of  the  facts  in  respect  thereto  was 
at  the  time  of  the  demand  made  by  the  plaintiff,  before  referred  to. 

The  question  is  presented  whether,  under  these  circumstances,  the 
plaintiff  can  maintain  an  action  to  recover  the  money  received  "By 
the  defendant  from  Gill  and  applied  in  payment  of  the  debt  owing 
by  him  to  the  defendant.   We  are  of  opinion  that  the  action  W'ill  not  ( 
lie.     The  money  having  been  obtained  by  Gill  from  the  plaintiff  by  ! 
fraud  and  felony  the  former  acquired  no  title  thereto,  and  the  plain-  | 
tiff  could  recover  it  from  Gill  if  found  in  his  possession,  or  he  could  / 
follow  it  into  the  hands  of  any  person  who  received  it  from  Gill/ 
without  consideration,  or  with  notice  of  the  fraud  by  which  he  ob-* 
tained  it.   The  money,  when  deposited  by  Gill  in  the  bank,  was  still 
the  money  of  the  plaintiff.     The  bank  w^as  a  mere  depository,  and 
while  it  so  remained  the  plaintiff  could  have  compelled  the  bank  to 
restore  the  money  to  him  as  the  rightftJl  owner.     Tradesman's  Bk. 
V.  Merritt,  i  Paige  302;  Mechanics'  Bank  v.  Levy,  3  id.  606;  Pen- 
nell  v.  Deffell,  4  De  Gex,  M.  &  G.  372.     But  the  bank,  having  paid 
it  out  on  the  check  of  Gill  without  notice  of  any  defect  in  his  title, 
was  thereafter  protected  against  any  claim  of  the  plaintiff  therefor. 
The  plaintiff,  however,  passing  by  the  bank  to  whose  possession  the 
money  first  came  from  Gill,  claims  to  recover  of  the  defendant  on 
the  ground  that  the  defendant,  having  received  it  from  Gill  in  pay- 
ment of  an  antecedent  debt,  cannot  be  permitted  to  retain  it  as 
against  the  plaintiff.     No  authority  has  been  cited  which  sustains 
this  position.     The  rule  has  been  settled  by  a  long  line  of  cases, 
that  money  obtained  by  fraud  or  felony  cannot  be  followed  by  the  j 
true  owner  into  the  hands  of  one  who  has  received  it  bona  iide  and  I 
for  a  valuable  consideration  in  the  due  course  of  business.     This,  ' 
said  Lord  Holt  in  i  Salk.  T26,  is  "by  reason  of  the  course  of  trade 
w'hich  creates  a  property  in  the  assignee  or  bearer" — and  In  ^Miller 
V.  Race  (4  Burr.  452),  Lord  Mansfield  said:    "The  true  reason 


6l2  WAIVER   OF   TORT. 

is  upon  account  of  the  currency  of  it;  it  cannot  be  recovered  after 
it  has  passed  into  currency."    No  suspicion  is  cast  upon  the  buna 
ades  of  the  defendant.     It  received  the  money  in  the  ordinary  course 
of  business,  and  for  a  good  and  vahd  consideration.     The  defendant 
had  no  connection  with  the  fraud  of  Gill.     He  did  not  act  or  assume 
to  act  as  the  defendant's  agent  in  the  transaction  with  the  plaintiff. 
The  money  was  not  obtained  through  or  by  means  of  his  relation 
to  the  defendant.     The  position  and  rights  of  the  parties  are  pre- 
cisely the  same  as  if  Gill  had  not  been  a  member  of  the  board  when 
the  payment  was  made,  or  as  if  the  debt  which  he  paid  had  not 
originated  in  any  violation  of  trust.     It  is  said  that  the  case  is  to 
be  governed  by  the  doctrine  established  in  this  State  that  an  ante- 
cedent debt  is  not  such  a  consideration  as  will  cut  off  the  equities  of 
third  parties  in  respect  of  negotiable  securities  obtained  by  fraud. 
But  no  case  has  been  referred  to  where  this  doctrine  has  been  applied 
to  money  received  in  good  faith  in  payment  of  a  debt.     It  is  abso- 
lutely necessary  for  practical  business  transactions  that  the  payee 
of  money  in  due  course  of  business  shall  not  be  put  upon  inquiry  at 
his  peril  as  to  the  title  of  the  payor.     Money  has  no  ear-mark.     The 
purchaser  of  a  chattel  or  a  chose  in  action  may,  by  inquiry,  in  most 
cases,  ascertain  the  right  of  the  person  from  whom  he  takes  the  title. 
But  it  is  generally  impracticable  to  trace  the  source  from  which  the 
possessor  of  money  has  derived  it.     It  would  introduce  great  con- 
fusion into  commercial  dealings  if  the  creditor  who  receives  money 
in  payment  of  a  debt  is  subject  to  the  risk  of  accounting  therefore 
to  a  third  person  who  may  be  able  to  show  that  the  debtor  obtained 
it  from  him  by  felony  or  fraud.     The  law  wisely,  from  considera- 
tions of  public  policy  and  convenience,  and  to  give  security  and  cer- 
tainty to  business  transactions,  adjudges  that  the  possession  of  money 
vests  the  title  in  the  holder  as  to  third  persons  dealing  with  him 
and  receiving  it  in  due  course  of  business  and  in  good  faith  upon 
a  valid  consideration.     If  the  consideration  is  good  as  between  the 
parties,  it  is  good  as  to  all  the  world.     "Money,"  said  Lord  Mans- 
field, in  Miller  v.  Race,  before  cited,  "shall  never  be  followed  into 
the  hands  of  a  person  who  bona  fide  took  it  in  the  course  of  cur- 
rency and  in  the  way  of  his  business."     The  question  involved  in 
this  case  was  considered  by  Johnson,  J.,  in  Justh  v.  Bank  of  Com- 
monwealth (56  N.  Y.  478),  and  he  says :  "In  the  absence  of  trust  or 
agency,  I  take  the  rule  to  be  that  it  is  only  to  the  extent  of  the 
interest  remaining  in  the  party  committing  the  fraud  that  money 
can  be  followed  as  against  an  innocent  party  having  a  lawful  title 
founded  upon  consideration;  and  that  if  it  has  been  paid  in  the 
ordinary  course  of  business,  either  upon  a  new  consideration  or  for 
an  existing  debt,  the  right  of  the  party  to  follow  the  money  is  gone." 
The  case  ]:)erhaps  did  not  call  for  a  decision  upon  the  point  whether 
an  existing  debt  was  a  sufficient  consideration  to  uphold  a  title  to 
money  fraudulently  obtained  by  a  debtor,  and  by  him  paid  to  his 
creditor,  as  against  the  defrauded  party ;  but  we  think  it  correctly 
declares  the  rule  of  law  upon  the  subject.     The  case  of  Caussidiere 


RIGHTS    OF    INNOCENT    HOLDER,  613 

V.  Beers  (2  Keyes  198)  is  entirely  consistent  with  the  rule  here  de- 
clared. The  defendant  in  that  case  had  no  right  to  the  money  either 
against  the  agent  from  whom  he  obtained  it  or  the  principal  to  whom 
it  belonged.  The  judgment  should  be  reversed  and  a  new  trial 
ordered. 

All  concur.  Judgment  reversed.^ 


STATE  NATIONAL  BANK  v.  PAYNE.,  ^px.«  • 
56  III.  App.  147. — 1894. 

Mr.  Justice  Pleasants. — This  suit  was  commenced  by  appellee 
[Payne]  before  a  justice  of  the  peace  and,  on  appeal  to  the  circuit 
court,  verdict  and  judgment  were  in  his  favor. 

The  evidence  clearly  tends  to  show  that  in  April,  1893,  W.  B. 
Diggs,  who  then  owed  one  Cooke  $100,  executed  to  appellee  a  chat- 
tel mortgage  upon  certain  live  stock  and  grain,  including  twenty-five 
acres  of  growing  wheat,  to  secure  a  note  to  him  for  $800  due  one  day 
after  date,  with  interest  at  six  per  cent,  per  annum.  In  the  following 
fall,  when  it  was  being  threshed,  he  turned  it  over  to  appellee,  who 
was  on  the  ground  and  arranged  to  pay  the  threshers,  to  apply  on 
the  mortgage  debt.  As  his  agent,  and  by  his  direction,  Diggs  sold 
it  to  the  elevator  company  in  Springfield,  receiving  therefor  its  two 
checks  on  the  bank,  payable  to  himself,  for  $154.  When  he  pre- 
sented them  for  payment,  Mr.  Jones,  the  father-in-law  of  Cooke, 
who  claimed  the  $100  that  the  latter  had  loaned  to  Diggs,  and  who 
was  an  officer  of  the  bank,  demanded,  after  the  checks  were  pre- 
sented, that  he  should  pay  that  debt  out  of  the  money  for  which 
they  were  drawn.  Diggs  then  told  him  he  could  not  do  so,  because 
that  money  belonged  to  appellee,  but  would  pay  it  soon  out  of  the 
proceeds  of  other  sales,  and  left  the  bank.  Within  an  hour  he  again 
appeared  at  the  counter,  where  Jones  told  Pierik,  who  was  then 
acting  as  paying  teller,  that  Diggs  agreed  he  (Jones)  should  have 
credit  for  $100,  and  to  pay  him  (Diggs)  the  balance.  Pierik  asked 
Diggs  if  that  was  right,  and  receiving  no  reply,  paid  him  $54  and 
some  cents,  which  he  took  and  went  out.  Some  time  thereafter 
appellee  went  to  the  bank  and  demanded  this  $100,  which  was 
refused,  and  thereupon  he  brought  this  suit  to  recover  it. 

The  defense  is  that  the  bank  is  not  liable  because  there  was  no 
privity  between  it  and  appellee.     This  action  is  for  money  had  and 

^Accord,  Southwick  v.  Bank  of  Memphis,  84  N.  Y.  420  (1881)  ;  Newhall  v. 
Wyatt,  139  N.  Y.  452  (1893);  Alabama  Bank  v.  Rivers,  116  Ala.  i  (1896); 
Merchants'  Insurance  Co.  v.  Abbott,  131  Mass.  397  (1881).  See  also, 
Walker  v.  Conant,  ante,  p.  280;  and  Fay  v.  Slaughter,  ante,  p.  392,  note. 

See  Brundred  v.  Rice,  49  Oh.  640  (1892),  for  an  attempt  to  create  and 
interpose  a  corporation  as  the  guilty  recipient,  in  order  to  protect  the  actual, 
guilty  individual  recipients. 


6l4  WAIVER   OF   TORT. 

received  by  appellant  for  use  of  appellee,  which  is  of  an  equitable 
character  and  lies  wherever  the  defendant  has  money  which,  ex 
ceqiio  et.  bono,  belongs  to  plaintiff.  In  this  case,  though  the  legal 
title  to  the  money  was  in  Diggs,  if  the  bank,  through  its  officer, 
Jones,  who  received  it,  had  notice  that  it  was  impressed  with  a  trust 
in  the  hands  of  the  party  from  whom  he  received  it,  we  understand 
that  the  cestui  que  trust  may  recover  it  in  this  action  at  law  as  Vv^ell 
as  in  equity.  Whether  it  be  so  because  in  such  a  case  no  proof  of 
privity  between  the  parties  is  required,  as  held  in  Drovers'  National 
Bank  v.  O'Hara,  i8  111.  App.  182,  or  because  the  law  always  and 
conclusively  implies  it,  as  seems  to  be  held  in  Havana  Press  Drill 
Co.  V.  Ashurst,  148  111.,  pp.  137  ct  seq.  (140),  the  consequence  is  the 
same. 

It  is  claimed  that  the  case  of  Hall  v.  Capen,  27  111.  386  (and  Capen 
V.  Hall,  29  111.  512),  is  on  all  fours  with  the  one  at  bar,  and  directly 
against  the  ruling  in  it.  We  see  no  analogy  in  fact  or  principle  be- 
tween them.  There  the  defendants  had  no  notice  nor  any  ground  for 
a  suspicion  that  the  money  in  question  which  he  received  belonged 
to  the  plaintiff,  or  was  not  the  money  of  the  party  from  whom  he 
received  it.  The  Supreme  Court  said  it  was  his  and  not  the  plain- 
tile's.  Here  the  defendant,  when  it  received  it,  had  full  and  dis- 
tinct notice  that  it  was  the  plaintiff's  and  not  Diggs'.  The  difference 
could  not  be  wider  or  more  radical.  We  think  the  case  of  O'Hara, 
supra,  affirmed  in  119  111.  646,  is  decisive  of  this,  and  required  the 
ruling  of  the  court  below  on  the  instructions  asked,  which  only  is 
here  assigned  for  error.  Judgment  affirmed. 


HINDMARCH  v.  HOFFMAN. 

127  Pa.  St.  284. — 1889. 

Sterrett,  J. — This  case  having  been  submitted  for  trial  without 
a  jury,  according  to  the  provisions  of  the  act  of  April  22,  1874,  P.  L. 
109,  the  learned  president  of  the  common  pleas  found  the  facts  sub- 
stantially as  follows :  On  the  morning  of  October  10,  1885,  Richard 
Savanack  stole  from  plaintiff,  in  Buffalo,  N.  Y.,  a  large  sum  of  mon- 
ey, $400  of  which  he  afterwards,  on  same  day,  deposited  with  defend- 
ant, to  be  returned  to  him  or  upon  his  order.  When  defendant  re- 
ceived the  money  he  was  ignorant  of  the  fact  that  it  had  been 
stolen  from  plaintiff  by  Savanack ;  but,  while  it  was  still  in  his  pos- 
session and  under  his  control,  he  was  notified  of  that  fact  by  plain- 
tiff's attorney,  and  that  plaintiff  claimed  it  as  his  property.  Not- 
withstanding the  notice  he  afterwards  paid  the  money,  "upon  the 
order  of  Savanack,  to  Messrs.  Brundage.  Weaver  &  Bell,  of  Buffalo, 
receiving  from  them  a  bond  to  indemnify  him  against  any  liability 
to  any  other  person  for  the  money."  Afterwards,  upon  defendant's 
refusal  to  pay  the  amount  to  plaintiff,  this  action  of  assumpsit  was 


RIGHTS    OF    IXXOCENT    HOLDER.  615 

brouglit  to  recover  the  same.  It  docs  not  appear  to  have  been  even 
questioned,  in  the  court  below,  that,  upon  the  cstabHshed  facts,  plain- 
tiff had  a  good  cause  of  action;  but  the  learned  judge  was  of 
opinion  that  he  could  not  recover  in  the  present  form  of  action,  and 
he  accordingly  entered  judgment  for  defendant.  His  conclusions 
of  law  were  duly  excepted  to,  and  they  now  constitute  the  specifica- 
tions of  error  before  us.  As  found  by  the  learned  judge,  the  money 
sued  for  as  money  had  and  received  by  defendant  to  the  use  of  plain- 
tiff never  belonged  to  Savanack,  nor  could  he  have  legally  recovered 
any  part  of  it.  On  the  contrary,  it  was  plaintiff's  money,  stolen 
from  him  by  Savanack,  and  by  the  latter  left  with  defendant.  While 
it  was  thus  in  his  custody  and  under  his  control,  he  was  fully 
informed  of  the  theft,  and  also  that  plaintiff,  as  owner  of  the  money, 
claimed  it.  Under  these  circumstances,  it  was  clearly  his  duty  to 
hold  it  for  plaintiff,  and,  upon  satisfactory  proof  of  ownership, 
to  pay  it  over  to  him.  From  the  existence  of  that  duty  the  law^ 
raised  an  implied  promise  by  defendant  to  do  so ;  but,  in  disregard 
of  his  duty  in  the  premises,  he  paid  it  over,  on  the  order  of  the 
thief,  to  parties  who  had  no  right  whatever  to  receive  it.  Justice 
demands  that  he  should  now  be  compelled  to  pay  the  amount  to 
the  rightful  owner ;  and  there  is  no  good  reason  why  it  should  not  be 
recovered  in  the  present  form  of  action. 

In  Clark  v.  Shee,  Cowp.  197,  it  was  held  that  case,  for  money  had 
and  received,  will  lie  by  the  true  owner  of  money  against  a  third 
person  into  whose  hands  it  came  mala  fide,  provided  its  identity  can 
be  traced  or  ascertained.  Referring  to  the  form  of  action  in  that 
case.  Lord  Mansfield  characterized  it  as  "a  liberal  action  in  the 
nature  of  a  bill  in  equity,  and,  if  under  the  circumstances  of  the  case, 
it  appears  that  the  defendant  cannot  in  conscience  retain  what  is 
the  subject-matter  of  it,  the  plaintiff  may  well  support  this  action." 
In  2  Greenl.  Ev.  (13th  ed.),  §§  102,  120,  the  principle  is  thus  stated: 
"Where  the  defendant  is  proven  to  have  in  his  hands  the  money  of 
the  plaintiff,  which,  ex  ccquo  et  bono,  he  ought  to  refund,  the  law 
conclusively  presumes  that  he  has  promised  so  to  do,  and  the  jury 
are  bound  to  find  accordingly,  and  after  verdict,  the  promise  is 
presumed  to  have  been  actually  proved."  "So,  if  money  of  the 
plaintiff  has  in  any  other  manner  come  to  the  defendant's  hands, 
for  which  he  would  be  chargeable  in  tort,  the  plaintiff  may  waive 
the  tort  and  bring  assumpsit  upon  the  common  counts."  Assumpsit 
was  also  sustained  in  Mason  v.  Waite,  17  Mass.  558,  upon  the  follow- 
ing facts :  Bank-notes,  done  up  in  a  package,  were  delivered  by  the 
owner  to  a  carrier,  who.  without  authority,  paid  them  to  a  third 
party  for  a  loss  at  a  faro-table.  In  an  opinion  sustaining  a  judg- 
ment in  favor  of  the  owner  of  the  notes  against  the  party  to  whom 
they  were  thus  paid,  the  chief  justice,  after  remarking  that  trover 
would  have  been  the  better  action  but  for  the  difficulty  of  identi- 
fying bank-notes,  said :  "We  do  not  see,  however,  why  the  action 
for  money  had  and  received  will  not  lie.  The  notes  were  paid  and 
received  as  money,  and  as  to  any  want  of  privity  or  any  implied 


J 


WAIVER   OF   TORT. 

promise  the  law  seems  to  be  that  where  one  has  received  money  of 
.  another,  and  has  not  a  right  conscientiously  to  retain  it,  the  law 
;  implies. a  promise  that  he  will  pay  it  over."  The  defendant  in  the 
case  at  bar  did  not  better  his  position  by  improperly  handing  over 
the  money  in  question  to  those  who  had  no  right  whatever  to  receive 
it,  after  he  knew  it  had  been  stolen,  and  that  plaintiff  was  its  true 
owner.  The  undisputed  facts  connected  with  his  possession  of  the 
money  immediately  before  he  parted  with  it  are  quite  sufficient  to 
raise  such  an  implied  promise  as  will  support  assumpsit.  We  are, 
therefore,  of  opinion  that  the  court  erred  in  not  entering  judgment 
in  favor  of  plaintiff  for  the  amount  claimed,  viz.,  $400,  with  interest 
from  May  24,  1886,  the  time  suit  was  commenced  before  the  city 
recorder.  Judgment  reversed,  and  judgment  is  now  entered  in  favor 
of  the  plaintiff  and  against  the  defendant  for  $400,  with  interest  from 
May  24,  1886,  and  costs. ^ 


BANK  OF  CHARLESTON  v.  BANK  OF  THE  STATE. 

13  Rich.  L.  (S.  C.)  291.— 1866. 

The  Bank  of  Charleston  sued  the  Bank  of  the  State  of  South 
Carolina,  in  assumpsit,  for  money  had  and  received.  Johnson  and 
Couturier  were  tellers  in  the  Bank  of  Charleston ;  Miller  was  a  teller 
in  the  Bank  of  the  State  of  South  Carolina.  Each  had  charge  of  the 
matter  of  daily  settlements  with  certain  banks  in  the  city.  Coutu- 
rier dealt,  in  that  particular,  with  the  Bank  of  the  State,  represented 
in  such  daily  mutual  settlements  by  Miller,  its  teller.  Banks  in 
Charleston  habitually  received  and  paid  checks  drawn  on  each  other 
for  accommodation  of  their  customers ;  and  it  was  the  duty  of  the 
teller  assigned  to  the  business  to  call,  every  day  upon  the  close  of 
banking  hovirs,  upon  the  corresponding  teller  of  another  bank,  checks 
on  which  had  been  paid,  to  settle  for  them.  Balance  of  the  day's 
business  being  ascertained,  and  each  bank  having  pass-books  (so 
called)  in  the  hands  of  its  teller,  the  teller  of  the  bank  found  to  be 
debtor,  entered  the  balance  ascertained  in  the  pass-book  of  the 
bank  found  to  be  creditor,  which  operated  as  an  acknowledge- 
ment of  so  much  deposited  by  the  creditor  in  the  debtor  bank.  It 
was  in  this  way  that  one  teller,  when  so  disposed,  was  able,  by  a 
fictitious  credit  in  the  pass-book,  to  afford  another,  "short"  of  money, 
the  means  of  squaring  his  accounts  with  his  own  bank.     Such  mu- 

Mn  Zink  v.  Wells  Faryo  &  Co.,  72  111.  App.  605  (1897),  a  thief  had  trans- 
ferred to  Zink,  stolen  money,  in  consideration  of  services  to  be  performed. 
Wells,  Fargo  &  Co.,  from  whom  the  money  had  been  stolen,  brought  an 
action  of  assumpsit  against  Zink.  The  court  said  (p.  611)  :  "A  thief  cannot 
by  wriKen  order  assign  stolen  money  in  consideration  of  services  to  be  per- 
formed in  the  future  and  thereby  give  to  the  assignee  a  title  that  will  prevail 
over  that  of  the  true  owner." 


RIGHTS    OF    INNOCENT    HOLDER.  617 

tual  accommodation  between  the  three  tellers  already  mentioned,  had 
been  granted  by  each  to  the  other ;  Miller  affirming  that  it  had  been 
frequent  for  a  space  of  two  years  or  more,  and  that  he  had  often 
accommodated  each  of  the  other  two  tellers  in  such  way.  On  the 
2(1  of  September,  1857,  Miller  obtained  from  Couturier,  in  the  pass- 
book of  the  Bank  of  the  State,  an  entry  of  credit  for  an  aggregate 
sum  of  $18,881.77;  (aggregate  credits  alone  were  entered  in  the 
pass-books.)  Of  that  aggregate,  $12,000  was  a  fictitious  sum.  So 
far  as  the  officers  of  either  bank  knew,  or  could  reasonably  suspect, 
the  transaction  was  founded  in  truth,  and  was  in  the  ordinary  course 
of  business.  This  fictitious  credit  of  $12,000  was  afterwards  reduced 
to  $5,500. 

As  to  the  transaction  with  Johnson.  On  the  2d  of  September, 
Miller  applied  to  him  for  $15,000  in  money,  during  banking  hours, 
and  obtained  it,  giving  his  check,  as  teller,  for  that  sum  in  favor  of 
Johnson,  "bearer"  being  struck  out.  Miller  testified  that  it  was  a 
loan  to  him  in  reciprocation  of  like  favor  often  yielded  by  him  to 
Johnson ;  that  Johnson  well  knew  it  to  be  so  ;  that  he  was  trusting 
him,  and  not  the  Bank  of  the  State ;  that  this  sum  in  bank-bills  w'ent 
into  the  mass  of  other  funds  he  had  as  teller ;  was  used  in  the  cur- 
rent business — that  is,  paid  out  to  checks  or  otherwise  disposed  of, 
as  other  money  intrusted  to  him  and  to  be  accounted  for  by  him. 
Miller  said,  as  to  both  Johnson  and  Couturier,  "They  knew  I  needed 
the  money,  and  lent  it  to  me.  I  lost  money,  and  borrowed  this  to 
make  up  my  cash,  else  I  should  have  been  found  a  defaulter.  I  had 
aided  them  in  the  same  way  and  for  the  same  purpose." 

Miller  had  no  authority  to  sign  checks  for  the  Bank  of  the  State, 
or  borrow  money  for  it  in  any  form.  Between  the  2d  and  19th  of 
September,  1857  (on  which  last  day  Miller's  connection  with  the 
bank  ceased),  there  had  passed  through  his  hands,  as  funds  of  the 
bank,  perhaps  as  much  as  $750,000.  Between  those  periods  there 
had  been  various  settlements  with  Aliller  as  teller ;  and  on  the  20th 
September  his  cash  was  counted,  and  in  good  assets  (money,  checks, 
coupons,  etc.),  the  sum  of  $69,252.46  was  found,  which  settled  his 
account  with  the  Bank  of  the  State,  with  which  his  connection  as 
teller  ceased  the  day  before. 

Neither  bank  seems  to  have  known  the  state  of  affairs  heretofore 
described  until  after  Miller  left  the  Bank  of  the  State.  Miller  had 
made  an  attempt  on  his  own  life,  and  this  led  a  few  days  after  to  some 
movement  in  the  Bank  of  Charleston,  of  wdiich  Mr.  Lowndes  was 
then  acting  president.  Johnson's  and  Couturier's  cash  was  covmted, 
and  then  were  found  the  two  checks  of  Miller  heretofore  referred  to, 
the  one  for  $15,000  and  the  other  for  $5,500;  the  first  in  favor  of 
Johnson,  and  the  other  of  Couturier.  They  were  presented  to  the 
Bank  of  the  State,  two  or  three  days  after  Miller  had  left  it,  payment 
demanded  and  refused,  and  this  action  followed.  Verdict  for  the 
defendant.    Plaintiff  appealed. 

Wardlaw,  J. — The  two  demands  brought  under  consideration  in 
this  case  are  essentially  different,  and  must  be  treated  separately. 


6l8  WAIVER   OF   TORT. 

I.  As  to  the  $15,000.  This  was  lent  by  Johnson  to  Miller,  and 
by  Miller  passed  to  his  bank,  the  defendant.  In  the  loan  and  attend- 
ing circumstances,  neither  of  the  banks,  parties  to  this  suit  was 
engaged  by  agent  or  otherwise.  Johnson  had  no  authority  from 
the  plaintiff  to  lend ;  Miller  no  authority  from  the  defendant  to 
borrow.  Each  of  these  tellers  acted  for  himself  only ;  both  knew 
that  they  were  dealing  with  the  money  of  others,  and  doing  so  dis- 
honestly, in  breach  of  their  official  duty.  The  case  is,  in  effect,  that 
the  two,  having  conspired  to  aid  each  other  in  execution  of  their 
fraudulent  purpose,  Johnson  purloined  the  money  from  the  Bank  of 
Charleston,  and  Miller  stealthily  introduced  it  into  his  till  in  the 
Bank  of  the  State  of  South  Carolina. 

The  money  belonged  to  the  Bank  of  Charleston  when  Miller 
opened  his  till  to  introduce  it.  Has  the  right  of  that  bank  to  recover 
it  been  taken  away?    If  so,  how  and  when? 

The  plaintiff's  right  to  recover  other  money  of  equal  value  from 
Miller  is  yet  perfect.  If,  instead  of  money,  the  property  abstracted 
from  the  plaintiff  had  been  an  ordinary  chattel,  the  plaintiff's  right 
to  recover,  against  a  purchaser  from  Miller,  the  chattel  or  its  value, 
would  still  subsist ;  for  he,  having  no  title,  could  have  transferred 
none.  But  certain  negotiable  paper,  and  money  (including  bank- 
bills,  which  are  in  most  respects  regarded  as  money)  constitute  an 
important  exception  to  the  general  rule  respecting  acquisitions  from 
persons  who  have  no  title.  For  the  interests  of  commerce  and  safety 
of  the  every-day  transactions  of  life,  the  free  circulation  of  the  me- 
diums of  exchange  is  so  far  encouraged  by  law  that  the  title  of 
money  passes  with  it  to  every  one  who  honestly  becomes  possessed 
of  it  as  his  own.  When  a  thief  has  parted  with  it  the  inquiry,  in  a 
contest  between  the  former  owner  and  the  now  possessor,  is :  Did  the 
money  pass  in  currency  to  the  latter  (or  to  some  other  person  through 
whom  he  claims)  boiia  fide,  for  valuable  consideration,  in  the  due 
course  of  business?  If  it  did,  no  recovery  can  be  had  by  the  former 
owner  either  in  an  action  looking  to  the  very  pieces  of  coin  or  very 
bills  that  were  stolen,  or  in  an  action  claiming  equivalent  damages. 
Miller  v.  Race,  i  Burr.  452. 

In  the  case  before  us.  Miller  received  the  sum  of  $15,000,  Septem- 
ber 2,  and  immediately  placed  it  in  the  till,  which,  as  teller  of  the 
defendant  bank,  he  used,  mingling  it  with  other  money  of  his  bank, 
which,  as  teller,  he  had  received  from  the  cashier  or  from  customers. 
He,  as  teller,  paid,  from  the  whole  mass  in  his  hands,  $84,000  next 
day,  and  in  the  course  of  the  two  subsequent  weeks  more  than  $700,- 
000  passed  through  his  hands.  In  the  meantime  various  settlements, 
two  or  more,  were  made  between  him  and  the  cashier,  and  Septem- 
ber 20,  the  day  after  he  left  the  bank,  his  cash  being  counted  was 
found  correct. 

Difl  the  money  pass  in  currency  to  the  defendant ;  that  is,  was  it 
transferred  as  cash  from  Miller  to  the  defendant  bank?  Miller, 
after  the  money  reached  his  till,  treated  it  in  all  respects  as  the 
bank's  money.     Like  the  money   intrusted  to  him  by   the  cashier. 


RIGHTS    OF    INXOCEXT    HOLDER.  619 

it  was  used  to  meet  demands  presented  at  the  counter  of  the  bank, 
and  thus  to  go  into  general  circulation.  The  evidence  makes  it  cer- 
tain that  much  of  it  was  paid  out  by  him  ;  the  ]:)robability  is  that,  at 
the  time  of  his  departure,  very  few  of  the  bills  which  were  abstracted 
from  the  Bank  of  Charleston  remained  in  the  Bank  of  the  State  of 
South  Carolina ;  if  any  did,  they  were  in  no  way  distinguishable 
from  other  money  of  the  latter  bank. 

Is  the  bona  fides  of  the  defendant  bank  in  the  transaction  subject 
to  just  suspicion  ?  On  this  head  nothing  has  been  imputed  besides  the 
constructive  notice  to  the  bank,  which  has  been  supposed  to  arise 
from  the  knowledge  of  the  fraud  possessed  by  its  officer,  Miller. 
But  this  knowledge  was  not  acquired  or  used  by  Miller  in  the  course 
of  his  agency  as  teller.  It  was  involved  in  his  own  misconduct,  and 
served  only  his  own  unworthy  purpose.  It  would  be  as  just  to 
estop  the  plaintiff  by  the  guilty  knowledge  of  Johnson  as  to  affect 
the  defendant  by  the  secrets  shut  up  in  Miller's  breast. 

Did  the  defendant  bank  give  valuable  consideration  for  the  money  ? 
Miller,  as  teller,  was  short  of  cash ;  he  obtained  this  money,  and  with 
it  and  other  means  made  square  his  account.  After  the  bank  got 
this  money,  it  had  no  more  than  it  ought  to  have  had ;  without  this, 
it  would  have  had  so  much  less  than  its  due.  The  consideration 
then  was  the  same  which  applies  wherever  money  is  received  in 
part  payment  of  the  balance  of  an  account  for  advances  made. 
With  regard  to  the  account  between  them,  the  bank  and  its  teller  had 
adverse  interests,  and  stood  towards  each  other  as  individuals  deal- 
ing at  arm's  length.  The  case  of  Swift  v.  Tyson,  15  Pet.  22,  makes 
it  now  clear  that  a  credit,  entered  in  an  account  of  preceding  indebt- 
edness, is  a  valuable  consideration  for  the  receipt  of  money.  If  a 
teller  be  called  a  bailee,  he  is  a  bailee  of  money  to  be  disbursed  and 
accounted  for,  and  for  a  balance  unaccounted  for  must  be  a  debtor. 

Was  the  money  received  by  the  defendant  bank  from  its  teller 
in  due  course  of  business  ? 

That  the  bank  should  have  a  teller,  that  an  account  should  be 
kept  of  moneys  advanced  to  him  and  moneys  disbursed  by  him, 
that  he  should  be  called  to  frequent  settlements,  that  the  balance  of 
cash  in  his  hands  should  be  subjected  to  actual  counting,  and  that 
he  should  be  held  debtor  for  any  deficiency,  are  all  incidents  in  the 
due  course  of  business,  and  all  occurred  in  this  case.  It  is,  however, 
said  that  the  teller  was  in  default,  that  his  defalcation  was  unknown 
to  the  bank,  and,  therefore,  that  the  $15,000  was  not  received  by  the 
bank  in  payment.  In  regard  to  the  course  of  business,  and  not  to 
the  base  means  by  which  the  teller  supplied  his  deficiencies,  it  was 
more  regular  that  his  cash  should  correspond  with  the  balance  in 
account  against  him,  than  that  it  should  fall  short ;  that  he  should 
appear  to  his  employers  to  be  accurate  and  faithful  than  that  his 
errors  and  embezzlements  should  be  manifest.  The  question  is  as 
to  the  bank's  right  to  retain  the  money  which  he  furtively  substi- 
tuted for  a  likesum  intrusted  to  him  "by  the  bank,  which  in  some 
way  he  had  dissipated.     How  could  the  bank  know  of  the  substitu- 


620  WAIVER   OF   TORT. 

tion  ?  What  safety  could  there  be  in  money  transactions,  if  the  right 
sum  in  the  right  place,  honestly  believed  to  be  the  bank's  own,  and 
dealt  with  as  its  own,  should  be  held  to  have  been  irregularly 
received  because  the  motives  and  conduct  of  its  teller  from  whom 
it  came  were  skillfully  concealed?^ 

By  whatever  name  we  may  call  the  transfer  of  this  money  to  the 
defendant  bank,  made  by  the  teller  in  reduction  of  the  balance  against 
him — a  payment,  a  restitution,  or  a  concealment — there  was  nothing 
in  the  transaction  between  him  and  the  bank  out  of  the  ordinary 
course  of  business.  The  more  artful  his  conduct,  the  less  the  grounds 
of  suspicion  against  him,  the  more  plain  is  the  fair  dealing  of  the 
bank. 

This  case  is  distinguished  from  the  Massachusetts  case  of  The 
Atlantic  Bank  v.  The  Merchants'  Bank,  lo  Gray's  Rep.  532,  in  this, 
that  there  the  identical  bills  remained  in  the  teller's  till,  v/hen  they 
were  demanded  by  the  bank  from  which  they  had  been  fraudulently 
obtained.  The  circumstance  is,  however,  not  material,  for  if  the  bills 
had  been  transferred  bona  iide  from  the  teller  to  his  bank,  it  mattered 
not  whether  afterwards  they  were  kept  identically  as  they  were 
received,  or  were  passed  from  the  bank  into  general  circulation. 
There  is,  however,  another  ground  for  distinction,  which  is  material. 
There,  in  the  opinion  of  the  court,  supported  by  the  majority  of  the 
judges,  it  was  held  that  the  bills  had  not  passed  from  the  teller  to 
the  bank,  for  his  intention  was,  after  exhibiting  them  to  be  counted, 
to  return  them  to  the  bank  from  which  they  were  brought ;  and  they 
remained,  before  and  after  the  counting,  under  his  control,  capable 
of  direct  identification.  Here  there  can  be  no  doubt  that  Miller 
intended  to  pass  the  bills  to  the  bank  of  which  he  was  teller,  and 
actually  did  so,  however  hopeful  he  may  have  been  that,  at  some 
future  day  he  would  have  been  able  to  contrive  the  return  of  a  like 
sum  to  his  confederate  in  the  Bank  of  Charleston. 

The  conclusion  of  this  court  is,  that  in  respect  to  the  $15,000  the 
verdict  is  right. 

2.  As  to  the  $5,500.  This  sum  got  to  the  defendant  bank  through 
Couturier's  false  acknowledgment  of  a  deposit  in  the  plaintiff  bank 
to  the  credit  of  the  defendant  bank.  This  acknowledgement  was 
procured  by  Miller  and  given  by  Couturier,  in  the  course  of  a 
settlement  of  checks  which  it  was  the  business  of  these  tellers  to  make 
every  day  between  their  two  banks.  There  was  not  in  the  fraudulent 
transaction  a  usurpation  of  authority  on  the  part  of  either  teller,  but 
a  most  shameful  abuse  of  it.  Their  contrivance  in  known  violation 
of  their  duty,  being  within  the  scope  of  the  agency  in  which  they 
were  employed,  was  valid  as  to  third  persons,  but  void  and  worthy 
of  punishment  as  between  each  of  them  and  his  principal  whom  he 
cheated.  By  means  of  it,  money  passed  between  the  banks,  not 
through  the  hands  of  an  intermediate  wrongdoer,  but  directly  from 

'  Accord,   Nassau   Bank   v.    National    Bank   of   Ne\vl)nrgh,    159   N.    Y.   456 
(1899). 


RIGHTS    OF    INNOCENT    HOLDER,  62 1 

one  party  to  the  other.  The  case,  stripped  of  the  embarrassment 
which  surrounds  artificial  persons  that  can  act  only  through  agents, 
becomes  that  of  one  banker  paying  money  to  another,  according  to 
a  statement  of  accounts  made  by  their  respective  clerks  duly  author- 
ized. Error  in  the  statement  which  arose  from  mistake  would  be 
clearly  subject  to  correction  in  an  action  for  money  had  and  received ; 
and  shall  the  mutual  fraud  of  the  clerks  be  more  sacred  than  their 
honest  mistake? 

This  branch  of  the  case  does  not  fall  within  the  principles  of  policy 
which  decided  the  other.  Here  there  was  no  consideration  for  the 
receipt  of  the  money  by  the  defendant  from  the  plaintiff.  It  is  true 
that  through  the  false  acknowledgement  of  Couturier,  Miller  ob- 
tained a  credit  in  his  account  with  the  defendant  bank.  That  shows 
that  Miller  is  still  debtor  to  the  extent  of  this  credit,  but  is  merely 
collateral  to  the  payment  made  by  the  plaintiff  to  the  defendant. 
For  the  payment  there  was  no  gain  to  the  plaintiff,  and  no  loss  to 
the  defendant,  which  in  any  way  influenced  either  of  the  parties. 
Suppose  Miller  had  passed  in  payment  to  his  bank  a  note  direct  from 
the  plaintiff"  to  the  defendant,  which  as  teller  he  had  fraudulently 
procured  the  plaintiff  to  give.  Between  immediate  parties  the  con- 
sideration of  negotiable  paper  is  subject  to  inquiry,  and,  in  an  action 
by  this  defendant  against  this  plaintiff  on  this  note,  the  fraud  would 
have  constituted  a  valid  defense.  Recovery  back  of  money  paid  on 
the  note  would  have  encountered  difficulties  which  the  plaintiff  does 
not  here  meet ;  for  here  is  an  entry  in  a  pass-book,  not  a  negotiable 
paper,  and  here  is  in  effect  an  error  in  an  account,  and  not  the  pay- 
ment of  a  single  distinct  demand.  Johnson's  agency  and  knowledge 
in  the  whole  affair  avail  no  more  against  the  plaintiff"  than  do  Miller's 
against  the  defendant.  A  fraud,  in  which  a  party's  agent  has  con- 
curred, cannot  be  more  obligatory  upon  the  party  ignorant  of  it  than 
the  party's  own  mistake  would  be.  If  we  relieve  both  of  these  parties 
from  the  effect  of  notice  had  by  their  faithless  agents,  the  case  ex- 
hibits money  paid  under  mutual  mistake,  induced  by  the  fraud  of 
third  persons.  To  the  condition  in  which  matters  stood  before  the 
mistake  they  should  now  be  restored.  The  superior  equity  of  the 
plaintiff  outweighs  the  possession  of  the  defendant.  See  Ancher  v. 
Bank  of  England,  Doug.  637 ;  Kelly  v.  Solari,  9  M.  &  W.  54. 

The  defendant's  loss  by  reason  of  Johnson's  acknowledgment  reg- 
ularly made  has  been  much  insisted  upon.  For  damage  thereby 
occasioned,  even  to  the  extent  of  the  whole  payment  made  under 
the  acknowledgment,  the  defendant's  right  to  retain  is  not  denied. 
But,  so  far  as  appears,  the  whole  consequences  of  the  acknowledg- 
ment which  affected  the  defendant  were,  that  thereby  the  defend- 
ant's funds  were  increased,  and  Miller  was  retained  as  teller  half 
a  month  longer  than  he  would  otherwise  have  been,  during  which 
time  his  conduct  was  unexceptionable.  Here  is  not  an  instance 
where  a  loss  must  fall  upon  one  of  two  innocent  parties,  for  here 
a  loss  had  been  already  sustained  by  one  party,  and  the  question 


622  WAIVER   OF   TORT. 

concerns  the  propriety  of  shuffling  that  loss  upon  the  other.  In  ac- 
curacy, as  in  probity,  a  mercantile  community  may  well  expect  ex- 
amples from  their  banks,  but  a  superstitious  reverence  for  bank 
books  and  bank  entries  should  not  induce  forgetfulness  of  the  tri- 
umph which  artful  villainy  sometimes  achieves  over  all  the  exer- 
tions of  human  sagacity  and  care. 

Of  the  fallibility  of  banks,  both  of  these  parties  must  have  a 
strong  sense  in  the  remembrance  that  both  of  them,  ably  and  dili- 
gently managed,  have  been  deceived  by  their  subordinate  officers. 

The  verdict,  in  respect  to  the  $5,500,  being,  in  the  opinion  of  this 
court,  wrong,  a  new  trial  is  ordered. 

DuNKiN,  C.  J.,  and  Inglis,  J.,  concurred. 


iii.  Trespass  to  Goods. 

FANSON  V.  LINSLEY. 

20  Kan.  235. — 1878. 

Valentine,  J. — This  action  was  commenced  in  a  justice's  court, 
and  after  judgment,  was  appealed  to  the  district  court.  The  plain- 
tiff's bill  of  particulars  reads  as  follows : 

Clay  Center,  Clay  Co.,  Kan.,  Sept.  18,  1876. 
A.  Fanson,  Dr.    To  Chas.  E.  Linsley : 

For   work   and   labor   performed,    repairing   and   rvinning   a 
steam  threshing  machine,  from  Aug.  20,  1876,  to  Sept.  10, 

1876,  18  days'  work,  at  $2  per  day $36  00 

Cr.,   cash    5  00 

Balance   due    $3 1  00 

The  defendant's  amended  bill  of  particulars,  after  tlie  title,  reads 
as  follows : 

I.  The  defendant  for  a  first  defense  to  the  plaintiff's  bill  of  par- 
ticulars herein,  says,  that  he  denies  each  and  every  allegation  there- 
in contained. 

II.  The  defendant  further  answering  says,  that  the  cause  of  ac- 
tion of  the  plaintiff  herein  arises  upon  a  contract  for  the  employment 
of  the  plaintiff  by  the  defendant  as  an  engineer  of  a  steam  thresh- 
ing-machine owned  by  the  defendant,  and  that  after  the  machine 
had  been  run  for  the  period  of  eleven  days  during  the  threshing 
season  of  1876,  by  the  plaintiff  as  its  engineer,  the  defendant,  dis- 
covering a  defect  in  the  machinery  of  said  machine,  determined  to 
abandon  its  use,  and  in  pursuance  of  such  determination  the  de- 
fendant  laid   up   and   housed   said   machine ;   and   that   afterward, 


TRESPASS    TO    GOODS.  623 

while  said  machine  was  laid  up  and  housed,  he  (the  plaintiff)  took 
possession  of  said  machine  and  ran  the  same  for  the  period  of 
three  days,  and  that  the  use  of  said  machine  was  worth  the  sum  of 
fifteen  dollars  per  day,  amounting  to  the  sum  of  forty-five  dollars, 
for  which  the  defendant  asks  judgment  of  the  plaintiff. 

III.  The  defendant  further  answering  says,  that  the  cause  of 
action  herein  set  forth  by  the  plaintiff  arises  upon  a  contract  for  the 
employment  by  the  defendant  of  the  plaintiff  as  an  engineer  of  a 
steam  threshing-machine ;  that  during  the  absence  of  the  defendant, 
the  plaintiff,  without  the  knowledge  or  consent  of  the  defendant, 
took  possession  of  the  said  machine,  and  moved  it  a  great  distance 
from  where  it  was  left  by  the  defendant,  so  that  it  cost  the  defend- 
ant the  sum  of  $12  to  get  said  machine  back  to  the  place  from 
where  it  was  taken  by  the  plaintiff.  The  defendant  further  says 
that  while  the  plaintiff  was  so  in  possession  of  said  machine,  said 
machine  was  damaged  in  the  sum  of  fifteen  dollars.  The  defendant 
asks  judgment  against  the  plaintiff  for  said  sum  of  twenty-five 
dollars. 

The  defendant  asks  judgment  against  the  plaintiff  for  the  sum 
of  seventy-two  dollars.  *  *  *  Judgment  was  rendered  in  fa- 
vor of  the  plaintiff  and  against  the  defendant.     *     *     * 

The  cause  of  action  set  up  in  the  defendant's  second  defense  is 
really  founded  upon  a  tort.  But  it  is  also  founded  upon  an  implied 
contract,  at  the  election  of  the  defendant.  That  is,  the  defendant 
may  waive  the  tort,  if  he  chooses,  and  treat  his  cause  of  action  as 
one  arising  upon  an  implied  contract.  The  wrong  committed  by 
the  plaintiff  affected  his  estate.  It  benefited  the  estate  of  the  plain- 
tiff. And  it  was  committed  for  the  purpose  of  benefiting  the  estate  of 
the  plaintiff.  And  therefore  it  will  be  presumed  or  implied  that  the 
plaintiff  agreed  to  pay  for  such  benefit.  We  think  it  is  well  settled, 
that  wherever  one  person  commits  a  wrong  or  tort  against  the  estate 
of  another,  with  the  intention  of  benefiting  his  own  estate,  the  law 
will,  at  the  election  of  the  party  injured,  imply  or  presume  a  contract 
on  the  part  of  the  wrongdoer  to  pay  to  the  party  injured  the  full 
value  of  all  benefits  resulting  to  such  wrongdoer.  (Stewart  v. 
Balderston,  10  Kan.  142 ;  Tightmeyer  v.  Mongold,  20  Kan.  90,  and 
cases  there  cited.)  The  party  injured  may  in  such  case  elect  to 
sue  upon  the  implied  contract  for  the  value  of  the  benefits  received 
by  the  wrongdoer,  or  he  may  sue  upon  the  tort  for  the  damages 
which  he  himself  has  sustained.  According  to  the  defendant's  bill 
of  particulars  in  this  case,  the  value  of  the  use  of  said  threshing- 
machine  for  the  three  days  which  the  plaintiff  used  it,  was  $45.  If 
this  bill  of  particulars  were  true,  the  defendant  should  have  recov- 
ered that  amount ;  or  rather,  after  setting  off  one  claim  against  the 
other  he  should  have  recovered  the  balance  due. 

We  do  not  think  that  the  cause  of  action  stated  in  defendant's 
third  defense  is  a  proper  subject  of  either  set-off'  or  counterclaim. 
It  does  not  appear  from  such  defense  that  the  plaintiff  received  or 


624  WAIVER   OF   TORT. 

expected  to  receive  any  benefit  from  his  wrongdoing ;  and  the  reHef 
asked  for  by  the  defendant  is  not  for  the  value  of  any  benefit  result- 
ing to  the  plaintiff,  but  is  for  damages  sustained  by  the  defendant. 
The  cause  of  action  therefore  does  not  arise  from  any  contract  ex- 
press or  implied  (Tightmeyer  v.  Mongold,  supra)  and  therefore  it 
cannot  be  pleaded  by  the  defendant  as  set-off.  And  said  cause  of 
action  has  no  connection  with  the  employment  of  said  plaintiff  by 
the  defendant  to  operate,  or  in  operating,  said  threshing-machine 
for  the  defendant,  and  hence  it  cannot  be  pleaded  by  the  defendant 
as  a  counterclaim. 

The  judgment  of  the  court  below  will  be  reversed,  and  cause  re- 
manded for  further  proceedings  in  accordance  with  this  opinion.^ 


REYNOLDS  et  al.  v.  PADGETT. 

94  Ga.  347.— 1894. 

Simmons,  J. — All  the  authorities  agree  that  one  who  takes  and 
sells  personal  property  belonging  to  another  without  the  consent  of 
the  owner  is  liable  for  its  value  in  an  action  upon  an  implied  prom- 
i.  '  to  pay  for  the  property.  The  authorities  differ  as  to  whether 
such  an  action  will  lie  where  the  person  taking  the  property  does 
not  sell  it,  but  retains  it  for  his  own  use ;  but  the  weight  of  author- 
ity seems  to  be  that  the  action  will  lie  where  the  person  who  takes 
the  property  enriches  himself  or  makes  a  profit  from  the  property, 
either  by  selling  it,  or  by  retaining  it  and  using  it  himself,  with  the 
intention  to  convert  it  permanently.  Pom.  Code.  Rem.,  §§  567, 
569,  and  notes.  The  defendant  in  this  case  did  neither  of  these 
things.  He  found  the  wagon  in  the  street,  and  hitched  his  horses 
to  it,  for  the  purpose  of  going  upon  a  fishing  excursion  for  one  day ; 
but,  upon  starting  to  go,  the  tongue  of  the  wagon  was  broken  by 
one  of  the  horses,  and  he  unhitched  the  horses,  and  left  it  in  the 
street.     It  was  finally  carried  to  his  lot,  and  left  there,  but  there  is 

^Accord,  Janes  v.  Buzzard,  Hemp.  240  (U.  S.  Superior  Ct.  for  Ark.  1834), 
the  court  saying  (p.  243)  :  "It  is  no  doubt  true  that  Buzzard  might  have 
brought  an  action  founded  upon  the  tortious  act  of  Janes,  and  recovered 
damages  for  the  wrongful  taking,  as  well  as  the  illegal  detention  of  his  ser- 
vants [slaves].  But  it  was  competent  for  him,  and  he  had  the  election  to 
waive  the  tort  and  to  bring  an  action  ex  quasi  contractu.  There  is  abundant 
authority  to  sustain  this  position.  In  the  case  of  Stockctt  v.  Watkins,  2  Gill 
&  Johns.  Rep.  320,  it  was  held  that  where  one  gets  possession  of  chattels 
tortiously,  and  converts  them  into  money,  the  real  owner  may  waive  the 
tort  and  sue  in  assumpsit  for  the  proceeds,  and  that  action  has  been  sustained 
in  some  instances  where  the  trespasser  has  not  parted  with  the  chattels. 
Where  they  have  been  returned  to  the  owner,  he  may  still  waive  the  tort,  and 
then  recover  their  value  for  the  time  of  their  detention  in  assumpsit,  i  Saund. 
Pi.  &  Ev.  133;  I  Chitty,  PI.  94;  i  Mo.  Rep.  643."  Contra,  Crow  v.  Boyd's 
Adm'r,  17  Ala.  51,  reported  herein  at  p.  579. 


TRESPASS    TO   LAND.  625 

no  evidence  that  he  ever  made  any  claim  to  the  wagon  or  any  fur- 
ther use  of  it,  nor  was  anything-  further  proven  tending  to  show 
that  he  intended  to  convert  it  permanently  to  his  own  use.  On  the 
contrary,  the  indications  are  that  he  was  holding  it  for  the  use  of 
the  owner.  We,  therefore,  think  the  trial  judge  was  right  in  hold- 
ing that  an  action  upon  an  implied  contract  would  not  lie,  but  that 
the  plaintiff  must  sue  in  tort  for  the  damage  to  his  property. 

Judgment  affirmed. 


iv.  Trespass  to  Land. 
SMITH  V.  STEWART. 
6  Johns.  (N.  Y.)  46.— 1810. 

Action  for  use  and  occupation. 

Per  Curiam. — At  common  law  no  action  of  assumpsit  for  rent 
would  lie,  except  upon  an  express  promise,  made  at  the  time  of  the 
demise.  (Johnson  v.  May,  3  Lev.  150,  Bull.  N.  P.  138.)  The 
present  action  is  given  by  the  statute  of  11  Geo.  II,  c.  19,  sec.  14, 
which  we  have  adopted.  (Laws,  Vol.  I,  146.)  But  this  statute, 
from  the  terms  of  it,  seem  to  apply  only  to  the  case  of  a  demise,  and 
where  there  exists  the  relation  of  landlord  and  tenant,  founded  on 
some  agreement  creating  that  relation.  So  are  the  precedents.  (2 
H.  Black.  319.)  Here  the  defendant  did  not  enter  under  such  a  re- 
lation, but  under  a  contract  for  a  deed.  He,  therefore,  entered 
under  a  color  of  title  which  might  have  been  enforced  in  equity. 
He  finally  refused  to  perform  the  contract,  and  changed  himself 
into  a  trespasser ;  and  the  better  opinion  is,  notwithstanding  the 
case  of  Hearn  and  Tomlin  (Peake's  N.  P.  192),  that  he  never  was 
strictly  a  tenant,  and  never  entitled  to  notice  to  quit,  nor  liable  to 
distress,  or  to  an  action  of  assumpsit  for  rent.  He  is  liable  in  an- 
other way,  to  be  turned  out  as  a  trespasser,  and  is  responsible,  in 
that  character,  for  the  mesne  profits.  The  motion  to  set  aside  the 
nonsuit  is,  therefore,  denied.  Judgment  of  nonsuit.^ 

*  Seemingly  in  accord  are  Preston  v.  Hawley,  139  N.  Y.  296  (1893),  and 
Lamb  v.  Lamb,  146  N.  Y.  317  (1895). 

As  to  assumpsit  for  use  and  occupation,  see  also,  Carpenter  v.  U.  S.,  17 
Wall  489  (1873),  reported  herein  ante,  p.  400. 

The  historical  reasons  which  explain  the  refusal  to  allow  indebiiatus 
assumpsit  for  rent  are  given  by  Professor  Ames  in  an  article  on  "Assumpsit 
for  Use  and  Occupation,"  2  Harvard  Law  Review,  377-380.  These  reasons 
are  stated  as  follows :  "It  is  instructive  to  compare  a  lease  for  years,  reserv- 
ing a  rent,  with  a  sale  of  goods.  In  both  cases,  debt  was  _  originally  the 
exclusive  action  for  the  recovery  of  the  amount  due.  In  neither  case  was 
the  duty  to  pay  conceived  of  as  arising  from  a  contract  in  the  modern  sense 
of  the  term.     l)ebt  for  goods  sold  was  a  grant.     Debt  for  rent  was  a  reser- 

Woodruff's  Cases — 40 


626  WAIVER   OF   TORT. 

ACKERAIAN  V.  LYMAN. 
20  Wis.  454. — 1866. 

Action  for  the  value  of  the  use  and  occupation  of  premises  al- 
leged to  have  been  the  property  of  one  Holdridge,  and  afterwards 
of  the  plaintiff,  and  to  have  been  occupied  by  the  defendant  "accord- 
ing to  the  permission"  of  said  Holdridge  and  subsequently  of  the 
plaintiff,  from  October  i,  1859,  to  February  i,  1863.  The  plaintiff* 
had  taken  an  assignment  of  Holdridge's  claim  for  that  portion  of 
the  time  during  which  the  latter  owned  the  premises.  The  ansvver, 
among  other  things,  denies  that  the  defendant  occupied  the  prem- 
ises "according  to  the  plaintiff's  permission,"  and  alleges  that  he 
went  into  possession  December  20,  i860,  as  assignee  of  an  unpaid 
mortgage  on  the  land,  and  held  and  occupied  under  the  mortgage 
until  February,  1863,  when  plaintiff  paid  him  the  amount  due  on 
the  mortgage,  and  he  delivered  up  the  possession  to  the  plaintiff. 
A  verdict  and  judgment  were  rendered  for  the  plaintiff;  and  the 
defendant  appealed. 

Downer,  J. — The  appellant  claims  that  the  circuit  court  erred  in 
instiucting  the  jury,  that  if  they  found  that  the  defendant  went  into 
possession  of  the  premises,  knowing  that  they  belonged  to  Hold- 
ridge, and  setting  up  no  right  to  them  in  himself,  or  in  any  other 
person  under  whom  he  claimed,  adverse  to  the  rights  of  Holdridge, 
and  remained  in  possession  thereof  with  the  assent  of  Holdridge 
or  his  duly  authorized  agent,  and  without  setting  up  any  claim 
adverse  to  the  right  of  Holdridge  to  the  premises,  then  the  law 
would  imply  a  promise  on  the  part  of  the  defendant  to  pay  to 
Holdridge  or  his  assigns,  whatever  the  use  and  occupation  was  rea- 
sonably worth  for  the  time  he  so  held. 

It  is  maintained  that  there  is  no  evidence  to  warrant  the  instruc- 

vation.  About  the  middle  of  the  sixteenth  century,  assumpsit  was  allowed 
upon  an  express  promise  to  pay  a  precedent  debt  for  goods  sold ;  and  in 
1602  it  was  decided  by  Slade's  case  that  the  buyer's  words  of  agreement, 
which  had  before  operated  only  as  a  grant,  imported  also  a  promise,  so  that  the 
seller  might,  without  more,  sue  in  Debt  or  Assumpsit,  at  his  option.  Neither 
of  these  steps  was  taken  by  the  courts  in  the  case  of  rent.  .  .  .  The  chief 
motive  for  making  Assumpsit  concurrent  with  Debt  for  goods  sold  was  the 
desire  to  evade  the  defendant's  wager  of  law.  This  motive  was  wanting  in 
the  case  of  rent,  for  in  debt  for  rent  wager  of  law  was  not  permitted.  Again, 
although  Assumpsit  was  the  only  remedy  against  the  executor  of  a  buyer  or 
borrower,  (he  executor  of  a  lessee  was  chargeable  in  debt.  These  two  facts 
seem  amply  to  explain  the  refusal  of  the  courts  to  allow  an  Indebitaftis 
Assumpsit  for  rent."  Ry  the  statute  11  Geo.  IT,  c.  19,  sec.  14,  "Indebitatus 
Assumpsit  became  concurrent  with  debt  upon  all  parol  demises.  .  .  .  But 
Indebitatus  Assumpsit  for  rent  being  of  statutory  origin,  the  courts  could 
not,  without  too  palpable  a  usurpation,  extend  the  count  to  cases  not  within 
the  act  of  Parliament.  The  statute  was  plainly  confined  to  cases  where,  by 
mutual  agreement,  the  occupier  of  land  was  to  pay  either  a  defined  or  a 
reasonable  compensation  to  the  owner.  Hence  the  impossibility  of  charging 
a  trespasser  in  assumpsit  for  use  and  occupation." 


TRESPASS    TO    LAND.  627 

tion,  and  that  if  there  was,  it  is  erroneous.  It  is  not  very  clear  from 
the  evidence  whether  the  defendant  entered  as  a  trespasser  without 
color  of  title,  or  under  Johnson,  a  tenant  of  Holdridge,  and  contin- 
ued in  possession  by  his  permission.  We  are  inclined  to  the  opin- 
ion that  there  was  evidence  from  which  the  jury  might  have  found 
that  Holdridge  permitted  the  defendant  to  occupy  the  premises,  and 
that  he  remained  in  possession  under  that  permission  until  the  mort- 
gage was  assigned  to  him.  But  the  instruction  is  to  the  effect  that 
if  he  entered  as  a  trespasser  without  claim  of  title,  and  remained 
in  possession  with  the  assent  of  Holdridge,  the  law  will  imply  a 
promise  to  pay  rent.  If  this  be  so,  then  all  that  is  necessary  to  con- 
vert a  trespasser  into  a  tenant  is,  for  the  owner  of  the  premises  to 
say  to  him,  "I  assent  to  your  possession,"  and  the  trespasser  be- 
comes a  tenant  without  his  own  consent,  or  even  against  his  will. 
A  tort  cannot  thus  be  converted  into  a  contract.  At  common  law, 
no  action  of  assnuipsit  for  rent  would  lie,  except  upon  an  express 
promise  made  at  the  time  of  the  demise.  Johnson  v.  May,  3  Lev. 
150;  Smith  V.  Stewart,  6  Johns.  46.  The  action  for  use  and  occupa- 
tion in  this  state  rests  on  section  17,  ch.  91,  R.  S.,  which  is  in  sub- 
stance the  same  as  sec.  14,  ch.  19,  11  Geo.  II.  That  section  re- 
quired that  there  should  be  an  agreement ;  but  it  is  w^ell  settled  that 
the  agreement  may  be  express  or  implied.  It  may  be  implied  from 
the  defendant's  entering  into  possession  by  the  permission  of  the 
plaintiff,  or  from  acts  showing  the  assent  of  the  defendant,  after  a 
tortious  entry,  to  hold  under  the  permission  of  the  plaintiff.  Hen- 
wood  V.  Cheesman,  3  Serg.  &  Rawle,  500 ;  Ryan  v.  Marsh,  2  Nott 
&  McCord,  156;  Stockett  v.  Watkins'  Adm'rs,  2  Gill  &  Johns.  326; 
Wiggin  V.  Wiggin,  6  N.  H.  298. 

In  Henwood  v.  Cheesman,  the  court  below  charged  that  if  the 
defendant  occupied  the  land  by  the  consent  and  permission  of  the 
plaintiff,  the  jury  might  presume  a  promise  to  pay  a  reasonable 
rent ;  and  this  instruction  was  held  correct.  But  it  is  evident  from 
the  whole  case  (the  testimony  in  which  is  not  fully  reported),  that 
the  defendant  either  entered  into  possession  by  permission  of  the 
plaintiff,  or  it  was  a  conceded  fact  that  after  he  was  in  possession 
he  held  under  his  permission ;  for  the  court,  in  its  opinion,  say  that 
"if  the  defendant  came  on  as  a  trespasser,  the  plaintiff  cannot  re- 
cover in  an  action  for  use  and  occupation."  And  to  the  same  effect 
are  Stockett  v.  Watkins'  Adm'rs,  and  Ryan  v.  Marsh,  and  other 
authorities  there  cited. 

In  this  case,  the  plaintiff  alleges  in  his  complaint  that  Holdridge 
permitted  the  defendant  to  have,  hold  and  occupy  the  premises,  and 
"that  the  defendant,  according  to  that  permission,  held  and  occu- 
pied," etc.  The  defendant,  in  his  answer,  denies  the  permission  of 
Holdridge,  and  denies  that  he,  according  to  the  permission,  held, 
occupied  and  enjoyed  the  premises.  It  appears  to  us  the  instruc- 
tion ignored  a  material  part  of  the  issue,  to-wit :  that  formed  by  the 
denial  of  the  defendant  that  he  held  possession  according  to  the 


628  WAIVER    OF   TORT. 

permission  of  the  plaintiff,  and  was  therefore  erroneous.     A  tres- 
passer cannot  be  converted  into  a  tenant  without  his  consent.  *    *    * 
By  the  Court.     The  judgment  of  the  Circuit  Court  is  reversed, 
and  a  venire  de  novo  awarded.^ 


NATIONAL  OIL  REFINING  CO.   v.   BUSH. 

88  Pa.  St.  335.— 1879. 

Assumpsit  b}^  the  National  Oil  Refining  Company  against  Bush, 
for  the  use  and  occupation  of  certain  premises.  The  plaintiffs  in 
the  court  below  declared  in  assumpsit,  filing  two  counts  for  use  and 
occupation  of  certain  premises ;  the  first  count  being  in  indehitatiis 
assumpsit  and  the  second  on  a  qnantnm  valebat.  The  defense  v/as 
that  the  form  of  the  action  should  have  been  trespass,  and  not  as- 
sumpsit ;  that,  after  a  notice  to  quit,  a  landlord  cannot  sue  for  use 
and  occupation  of  premises  held  over ;  and  that  the  notices  of  Octo- 
ber, 1874,  and  January,  1875,  forever  severed  Bush's  relation  of 
tenant  to  the  company.  The  contention  of  the  company,  on  the 
other  hand,  was  that,  if  a  landlord  permits  the  tenant  to  hold  over 
after  the  time  fixed  by  the  notice  to  quit,  in  order  that  he  may  ne- 
gotiate with  him  for  a  new  letting,  and  does  so  negotiate  with  him, 
the  original  contract  relation  subsists,  and  the  tenant  is  liable 
thereon. 

Mr.  Justice  Gordon. — Undoubtedly  the  court  below  was  right 
in  submitting  to  the  consideration  of  the  jury  the  question  whether 
Bush  was  occupying  the  premises  in  controversy  at  the  sufferance 
of  the  Refining  Company  or  as  a  trespasser  merely.  If,  indeed,  as 
was  said  in  the  case  between  these  same  parties,  reported  in  5  W.  N. 
C.  143,  the  defendant  was  permittted  to  remain  in  the  possession 
of  the  property,  and  he  did  so  remain  until  the  plaintiff  elected  by 
its  writ  of  ejectment,  or  otherwise,  to  regard  him  as  a  trespasser, 
up  to  that  time,  it  might  recover  from  him  the  worth  of  the  prem- 
ises, by  the  action  of  assumpsit  for  use  and  occupation ;  but  from 
the  time  the  company  made  its  election  to  treat  him  as  a  tres- 
passer, it  could  no  longer  recover  from  him  on  the  ground  of 
an  implied  contract ;  for,  the  landlord,  having  thus  determined 
the  status  of  the  occupant,  there  is  no  room  left  to  presume  a 
contract.  It  is  true,  indeed,  that  in  the  first  place,  the  tenant  can- 
not shelter  himself  under  such  a  plea,  for  it  is  not  for  him,  but 
the  landlord,  to  say  in  what  light  he  shall  be  regarded,  whether  as 
tenant  or  trespasser ;  whether  the  tort  shall  be  waived  or  not ;  but 

'Accord,  Dixon  v.  Ahern,  19  Nev.  422  (1887),  with  a  review  of  American 
cases.  For  a  full  citation  of  American  authorities  see  "Action  for  Use  and 
Occupation  against  a  Trespasser,"  by  Eugene  McQuillin,  in  23  Central  Law 
Journal,  387. 


TRESPASS    TO    LAND.  629 

when  the  landlord  has  once  determined  this  question,  the  matter  is 
settled,  and  he  must  abide  by  his  own  decision.  It  is  upon  this 
ground  that  the  case  of  Goddard  v.  Hall,  55  Maine,  579,  is  put.  It 
was  there  held,  that  an  action  for  use  and  occupation  could  not  be 
maintained  against  a  disseisor,  and  that  a  judgment  upon  a  writ  of 
entry  negatived  the  relation  of  landlord  and  tenant.  Of  like  force 
is  the  case  of  Featherstonhaugh  v.  Bradshaw,  I  Wend.  134,  which 
rules  that  assumpsit  will  not  lie  after  proceedings  to  obtain  posses- 
sion under  the  statute  against  a  tenant  holding  over,  it  appearing 
by  the  plaintiff's  affidavit,  that  the  holding  over  was  without  his 
assent  or  permission,  hence,  his  assent  could  not  be  implied  in  the 
face  of  his  oath  to  the  contrary.  And  it  is  therein  taken  as  indis- 
putable, per  Sutherland,  J.,  that  the  action  of  assumpsit  will_  not 
lie  to  recover  rent  accruing  subsequently  to  the  demise  laid  in  a 
declaration  in  ejectment.  These  cases  illustrate  what  we  have  al- 
ready said,  that  the  action  depends  upon  the  landlord's  assent,  ex- 
press or  implied,  to  the  tenant's  use  of  the  premises,  and  his  election 
to  treat  the  occupant  as  a  disseisor  negatives  such  assent. 

When,  therefore,  the  Refining  Company,  through  its  agent,  fol- 
lowing up  its  two  previous  notices,  informs  Bush,  on  the  8th  day 
of  January,  his  holding  over  having  then  already  commenced,  that 
he  was  but  a  trespasser,  and  that  he  would  be  held  for  damages  ac- 
cordingly, there  was  something  to  show  that  the  company  did  not 
assent  to  his  occupancy  of  the  premises,  and  that  it  had  determined 
to  treat  him  as  a  disseisor.  Hence,  we  repeat  there  was  som.ething 
to  submit  to  the  jury ;  something  from  which  the  jury  might  have 
found  a  verdict  for  the  defendant. 

Nevertheless,  whilst  this  is  so — whilst  we  agree  that  the  question, 
as  to  whether  Bush  was  or  was  not  a  trespasser,  was  one  calling  foi 
the  consideration  of  a  jury,  yet  we  can  not  but  think  that  the  court 
was  wrong  in  this,  that  it  charged,  inter  alia,  "But  in  this  case  you 
find  a  notice  to  quit  of  October  16,  1874,  and  that  is  followed  up 
by  two  letters,  addressing  him,  and  regarding  him  as  a  trespasser ; 
and  there  is  no  evidence  that  after  that  the  plaintiffs  assented  to 
his  remaining."  It  does  not  follow  that,  notwithstanding  the  three 
several  notices  and  the  threat  to  treat  him  as  a  trespasser,  the  com- 
pany did  not,  after  all,  permit  him  to  remain  on  the  premises  pend- 
ing the  negotiations  for  a  new  lease.  That  he  did  hold  over,  and 
that  the  plaintiff  did  not  institute  adversary  process,  immediately 
after  the  last  notice,  are  some  evidence  that  he  was  there  holding 
at  sufferance.  Then  the  fact  that  negotiations  for  a  new  lease 
were  pending  between  the  parties,  especially  if  taken  in  connection 
with  the  letter  of  Mr.  Schick,  the  attorney  of  Bush,  is  well  nigh 
conclusive  of  the  fact  that  he  remained  in  possession  of  the  property 
by  permission,  and  not  as  a  disseisor. 

Besides  it  was  error  to  set  the  jury  upon  a  hunt  after  a  new  con- 
tract of  lease :  such  contract  was  not  necessary  to  the  maintenance 
of  the  action ;  it  is  not  necessarily  founded  upon  a  specific  contract, 


630  WAIVER   OF   TORT. 

written  or  oral,  but  upon  the  use  of  the  premises.  The  occupant 
may  be  in  fact  a  trespasser,  but  the  owner  of  the  tenement  may 
waive  the  trespass  and  recover  in  assumpsit,  and  it  does  not  h>  with 
the  tortfeasor  to  defeat  him  by  interposing  his  own  wrong.  To  tell 
the  jury,  therefore,  that  they  must  find  some  new  contract  between 
the  parties,  in  order  to  rebut  the  presumption  arising  from  tlie 
notices,  was  error,  for  that  presumption  might  well  be  rebutted  by 
the  subsequent  acts  of  those  parties. 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  ordered. 


MAYOR,  ALDERMAN  AND  BURGESSES  OF  NEW- 
PORT V.  SAUNDERS. 

3  B.  &  Ad.  (K.  B.)  411.— 1832. 

Assumpsit  for  tolls  and  stallage.  At  the  trial  the  jury  found 
a  verdict  for  the  plaintiffs  on  the  count  for  stallage,  with  is.  dam- 
ages ;  and  were  discharged  of  the  issue  as  to  the  tolls. 

Coleridge,  Serjt.,  now  moved  for  a  rule  to  enter  a  nonsuit,  on 
the  ground  that  in  the  absence  of  evidence  of  any  contract  in  fact, 
either  express  or  to  be  implied,  assumpsit  was  not  maintainable  for 
stallage.  In  The  Alayor  of  Northampton  v.  Ward,  2  Str.  1239,  i 
Wils.  115,  it  was  said  by  the  court,  "that  trespass  was  the  proper 
form  of  action,  and  that  neither  debt  nor  assumpsit  would  lie"  (for 
stallage)  ;  "nor  could  the  owner  of  the  soil  distrain,  because  there  is 
not  any  certain  fixed  sum  or  duty,  or  contract  express  or  implied." 
Here  the  evidence  showed  that  there  'w  as  no  contract  for  stallage. 
*  *  *  In  the  case  of  stallage  the  owner  of  the  market  has  no  op- 
tion ;  he  must  permit  the  public  to  resort  to  the  market,  and  cannot 
refuse  to  any  one  the  right  to  occupy  his  land  by  a  stall  for  the  pur- 
pose of  exposing  his  wares  to  sale  who  will  pay  him  the  accus- 
tomed or  reasonable  stallage ;  the  person,  therefore,  enters  lawfully, 
though  without  the  owner's  consent ;  and  by  refusing  to  pay  the 
s^-^llage  when  due,  he,  to  use  the  language  of  the  court  in  the  case 
cited  (2  Str.  1239,  i  Wils.  115),  "misbehaves  and  becomes  a  tres- 
passer ab  initio." 

Lord  Tenticrden,  C.  J. — I  do  not  see  any  objection  to  the  form 
of  action.  Tolls  may  be  recovered  in  assumpsit,  and  no  proof  is 
given  of  anything  like  a  contract  by  the  party  against  whom  the 
claim  is  made.  Evidence  is  given  of  the  right  to  receive  them,  and 
that  is  always  deemed  sufficient.  Stallage  is  not  distinguishable 
from  tolls  in  that  respect.  The  party  entitled  to  stallage  may  waive 
the  tort.  In  the  Mayor  of  Northampton  v.  Ward,  2  Str.  1239,  i 
Wils.  115,  the  court  decided  that  trespass  was  maintainable;  but 
what  was  said  as  to  bringing  debt  or  assumpsit,  was  extra-judicial. 

LiTTLEDALE,  J. — Assumpsit   lies  for  the  use  and  occupation  of 


TRESPASS   TO    LAND.  63 1 

premises  at  the  suit  of  the  owner.  Now  stallage  is  a  satisfaction 
to  the  owner  of  the  soil  for  the  liherty  of  placing  a  stall  upon  it. 
If  assumpsit  be  maintainable  in  the  one  case,  there  is  no  reason  it 
should  not  in  the  other. 

Parke  and  Pattison,  JJ.,  concurred.  Rule  refused. 


PHELPS  V.  CHURCH  OF  OUR  LADY  HELP  OF 
CHRISTIANS. 

99  Fed.  683  (40  C.  C.  A.  "72). — 1900. 

Before  Acheson,  Dallas,  and  Gray,  Circuit  Judges. 

AcHESON,  Circuit  Judge. — *  *  *  *  jj^  ^j^jg  action  of  as- 
sumpsit, the  receiver  of  the  Metropolitan  Marble  Company  seeks 
to  recover  the  value  of  certain  stone  which,  as  he  alleges  and  claims 
to  have  shown,  was  wrongfully  mined  from  and  taken  out  of  the 
said  quarry  during  his  company's  ownership  thereof,  as  lessee,  by 
one  John  J.  Sullivan,  who  was  acting  for  the  defendant,  and  was 
a  naked  trespasser  as  against  the  Metropolitan  Marble  Company ; 
which  stone  was  brought  by  the  defendant  to  East  Orange,  in  the 
state  of  New  Jersey,  and  was  there  actually  appropriated  by  the 
defendant,  and  used  in  building  its  church. 

Now,  if  the  true  state  of  facts  be  as  above  alleged,  it  seems  to  us, 
under  the  authorities,  that  the  plaintiff  can  maintain  a  personal  ac- 
tion in  this  jurisdiction  against  the  defendant  to  recover  the  value 
of  this  stone.  Hoy  v.  Smith,  49  Barb.  360 ;  Hughes  v.  United  Pipe 
Lines,  119  N.  Y.  423,  23  N.  E.  1042;  Lehigh  Zinc  &  Iron  Co.  v. 
New  Jersey  Zinc  &  Iron  Co.,  55  N.  J,  Law  350,  357,  26  Atl.  920. 
And  we  think  that  the  plaintiff  could  waive  the  tort,  and  sue  in  as- 
sumpsit, especially  in  view  of  the  fact  that  the  defendant  had  not 
only  actually  applied  the  stone  to  its  own  beneficial  use,  but  had  so 
used  the  stone  that  it  cannot  be  reclaimed.  Terry  v.  Munger,  121 
N.  Y.  161,  24  N.  E.  272,  8  L.  R.  A.  216;  Dundas  v.  Muhlenberg's 
Ex'rs,  35  Pa.  St.  351,  353;  Halleck  v.  Mixer,  16  Cal.  574,  578;  2 
Greenl.  Ev.,  §   108. 

The  rulings  of  the  court  below  did  not  directly  contravene  any  of 
the  legal  principles  we  have  discussed ;  but  upon  the  conclusion  of 
the  plaintiff's  case,  and  without  any  evidence  having  been  offered 
by  the  defendant,  the  learned  judge  instructed  the  jury  to  find  a 
verdict  in  favor  of  the  defendant,  on  the  ground  that  the  case  in- 
volved a  question  of  title  to  the  land  from  which  the  stone  was 
taken,  which  question  could  not  be  determined  in  this  action.  Was 
the  court  justified  in  thus  taking  the  case  from  the  jury? 

Now,  the  Court  of  Errors  and  Appeals  of  New  Jersey,  in  Lehigh 
Zinc  &  Iron  Co.  v.  New  Jersey  Zinc  &  Iron  Co.,  supra,  after  stating 
that  the  owner  of  land  can  generally  maintain  trover  against  a  per- 


632  WAIVER   OF   TORT. 

son  who  severs  and  converts  to  his  own  use  what  is  part  of  the  realty, 
such  as  ores,  etc.,  added  this  quahfication : 

"But  there  is  a  considerable  line  of  cases  holding  that  if  the  de- 
fendant, at  the  time  of  the  severance,  is  in  adverse  possession  of  the 
realty,  under  a  bona  fide  claim  of  title,  the  thing  severed  becomes 
his  property,  so  that  the  owner  of  the  land  cannot  maintain  trover 
or  replevin  therefor,  but  must  resort  to  his  remedy  for  the  posses- 
sion of  the  land  and  mesne  profits." 

The  earliest  case  in  this  line  is  Mather  v.  Ministers,  3  Serg.  &  R. 
509,  in  which  the  Supreme  Court  of  Pennsylvania  ruled  that  trover 
for  stone  and  gravel  dug  from  land  does  not  lie,  by  one  who  has  the 
right  of  possession,  against  the  person  w^ho  has  the  actual  adverse 
possession  of  the  land  and  sets  up  title  to  it.  From  the  later  deci- 
sion by  the  same  court,  in  Harlan  v.  Harlan,  15  Pa.  St.  507,  513, 
514,  it  appears  that  the  possession,  to  defeat  such  personal  action, 
is  not  the  occupancy  of  a  mere  intruder,  but  actual  adverse  posses- 
sion, maintained  under  a  bona  iide  claim  of  title.  In  Halleck  v. 
Mixer,  16  Cal.  574,  the  rule  is  thus  stated : 

"The  plaintiff,  out  of  possession,  cannot  sue  for  property  severed 
from  the  freehold,  when  the  defendant  is  in  possession  of  the  prem- 
ises from  which  the  property  was  severed,  holding  them  adversely, 
in  good  faith,  and  under  claim  and  color  of  title.  In  other  words, 
the  personal  action  cannot  be  made  the  means  of  litigation  determin- 
irg  the  title  to  real  property,  as  between  conflicting  claimants  ;^  but 
the  rule  does  not  exclude  the  proof  of  title  on  the  part  of  the  plain- 
tiff in  other  cases ;  for  it  is,  as  we  have  already  observed,  upon  such 
proof  that  the  right  to  recover  rests.  It  is  because  the  plaintiff  owns 
the  premises,  or  has  a  right  to  their  possession,  that  he  is  entitled 
to  the  chattel  which  is  severed ;  and  that  must,  of  course,  in  the  first 
instance,  be  established.  A  mere  intruder  or  trespasser  is  in  no 
position  to  raise  the  question  of  title  with  the  owner,  so  as  to  defeat 
the  action." 

Here  it  appears  from  the  certified  exemplification  of  the  record 
in  evidence,  that  James  A.  Phelps,  as  receiver  of  the  Metropolitan 
Marble  Company,  instituted  before  the  county  judge  of  Lewis 
County,  N.  Y.,  a  summary  proceeding  against  John  J.  Sullivan  and 
his  associates,  charging  them  with  unlawful  and  forcible  entry  into, 
and  unlawful  and  forcible  detainer  of,  the  aforesaid  tract  of  land, 
which  proceeding,  on  December  21,  1897,  resulted  in  a  judgment 
dispossessing  Sullivan,  and  restoring  possession  to  Phelps,  the  re- 
ceiver of  said  company.  Accordingly,  and  before  this  suit  was  be- 
gun, possession  of  the  land  was  restored  to  this  plaintiff  who'  was 
in  possession  when  he  brought  this  action,  and  has  retained  pos- 
session. Moreover,  upon  an  attentive  examination  of  the  record  in 
this  case,  we  fail  to  discover  any  evidence  of  title  in  the  defendant 

^Accord,  Downs  v.  Finnegan,  58  Minn.  112  (1894),  the  court  saying:  "The 
settled  principle  is  that  title  to  land  cannot  be  tried  ex  dirccto  in  transitory 
actions." 


FALSE    IMPRISONMENT.  633 

or  in  Sullivan  to  the  locus  in  quo.  Sullivan  appears  in  the  light  of 
a  mere  trespasser,  who  had  been  in  the  temporary  unlawful  occu- 
pancy of  the  premises.  The  case,  as  presented  by  this  record,  is  not 
one  of  conflicting  titles  to  the  land.  It  will  be  observed  that,  at  the 
time  the  court  gave  peremptory  instructions  against  the  plaintiff, 
the  defendant  had  not  put  in  any  evidence  whatever.     *     '^'-     * 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  case  is 
remanded  to  that  court,  with  direction  to  grant  a  new  trial.^ 


V.  False  Imprisonment. 

THOMPSON  V.  BRONK  et  al. 

126  Mich.  455. — 1901. 

Montgomery,  C.  J. — The  defendant,  Bronk,  had  a  contract  with 
the  warden  of  the  state  prison  at  Jackson,  by  the  terms  of  which 
the  warden  was  to  furnish  to  defendant  the  labor  of  300  convicts, 
to  be  employed  in  manufacturing  shirts,  at  a  stated  price  per  day. 
The  defendant,  Buffington,  is  a  partner  of  Bronk,  and  stands  in  the 
same  relation  to  plaintiff.  Under  the  contract,  the  selection  of  men 
was  left  with  the  warden,  and  the  contractor  was  bound  to  accept 
such  able-bodied  men  as  were  supplied  him.  The  plaintiff  was 
committed  to  this  prison  by  the  circuit  court  for  the  county  of 
Newaygo,  and  was  detained  under  a  commitment  claimed  to  be 
void  on  its  face.  The  plaintiff  was  by  the  warden  assigned  to  work 
on  defendant's  contract.  He  continued  on  this  contract  for  the 
period  of  576  days.  Defendants  paid  the  state  for  plaintiff's  labor 
at  the  agreed  price.  Under  a  rule  of  the  prison,  plaintiff  was  per- 
mitted to  receive  pay  from  the  defendants  for  overtime,  and  for  do- 
ing good  work,  amounting,  in  the  aggregate,  to  $58.49.  The  plain- 
tiff, on  obtaining  his  discharge  from  the  custody  of  the  warden, 
brought  this  action  against  defendants  to  recover  for  the  value  of 
(the  services  rendered.  The  declaration  contains  the  labor  and 
quantum  meruit  counts.  The  circuit  judge,  after  finding  the  above 
facts,  entered  judgment  for  defendants,  and  plaintiff  brings  error. 

If  the  law  raises  an  implication  of  a  promise  to  pay  plaintiff  for 
these  services,  it  cannot  be  an  implication  of  fact,  but  a  fiction.  It 
is  clear  that  defendants  had  no  thought  of  accepting  services  from 
plaintiff,  to  be  compensated  in  any  other  way  than  under  their  ex- 
press contract  with  the  warden.  It  is  said,  in  some  cases,  where  the 
defendant  is  guilty  of  a  wrong, that  the  law  will  recognize  an  implied, 

^  See  also,  O'Conley  v.  President  and  Selectmen  of  Natchez,  i  S.  &  M. 
(Miss.)  31  (1843).  where  assumpsit  was  allowed  to  the  plaintiff  to  recover 
wharfage  received  by  the  city  authorities,  who  trespassed  upon  the  plain- 
tiff's wharf  and  landing,  and  collected  tolls  and  charges  belonging  to  him. 


634  WAIVER   OF   TORT. 

or,  more  accurately  speaking,  a  constructive,  contract,  and  enforce 
it.  Hertzog  v.  Hertzog,  29  Pa.  465.  But,  where  the  circumstances 
repel  all  implication  of  a  promise  in  fact,  the  law  will  not  imply  a 
promise,  unless  something-  has  been  done  on  which  an  implication 
of  a  promise  can  be  rested,  as  in  the  case  of  a  sale  of  personal  prop- 
erty by  a  tortfeasor,  who  then  became  liable  to  an  action  for  money 
had  and  received.  Watson  v.  Stever,  25  Mich.  386.  These  defend- 
ants contracted  with  a  third  party  for  laborers.  Under  such  con- 
tract, the  third  party  furnished  certain  laborers, — among  them,  the 
plaintiff.  The  defendants  paid  to  the  third  party  the  contract  price 
for  the  labor  so  supplied.  No  contract  relations  existed  between 
the  parties  to  this  suit.  There  was  no  privity  between  them.  They 
were  not  consenting  bargainors,  coming  together  in  contract  rela- 
tions manifested  by  some  intelligible  conduct,  act,  or  sign,  and  the 
whole  transaction  was  brought  about  and  is  accounted  for  by  cir- 
cumstances repelling  every  possible  implication  of  contract  rela- 
tions. Two  cases  are  cited  in  support  of  plaintiff's  contention,  which 
at  first  reading  might  appear  to  give  support  to  his  claim,  but  we 
think  these  cases  may  be  distinguished.  In  Patterson  v.  Crawford, 
12  Ind.  241,  a  recovery  was  had,  by  a  convict  improperly  impris- 
oned, against  the  contractor  with  the  prison  authorities,  for  services 
rendered  while  unlawfully  in  prison.  In  that  case  the  contract  was 
for  the  services  of  all  convicts,  at  a  gross  sum.  Thij,  of  course,  meant 
all  convicts  lawfully  confined.  The  services  of  plaintiff  were  not, 
therefore,  contracted  for  or  paid  for  by  defendant  under  his  con- 
tract with  the  state.  The  defendant  therefore  had  the  benefit  of 
the  plaintiff's  services.  In  the  present  case  the  defendant  paid  for 
all  services  rendered,  and  this  distinguishes  the  case.  We  express  no 
opinion  as  to  whether  the  case  of  Patterson  v.  Crawford  was  rightly 
decided.  The  other  case  is  Greer  v.  Critz,  53  Ark.  247,  13  S.  W. 
764.  In  that  case  the  county  court  undertook  to  enter  into  a  contract 
with  defendant  for  plaintiff's  services  while  he  worked  out  a  fine 
imposed  by  the  court.  The  county  judge  had  no  power  to  make 
such  a  contract,  and  defendant,  being  a  party  to  the  contract,  was 
held  bound  to  know  of  this  lack  of  authority,  and  that,  as  he  had  the 
benefit  of  plaintiff's  services,  he  was  obliged  to  pay  for  them.  In 
the  present  case  the  defendants  were  not  responsible  for  the  plain- 
tiff's status  as  a  convict.  They  accepted  his  services  under  a  per- 
fectly valid  contract  with  the  warden.  They  have  paid  for  such 
services,  and  we  think  the  law  will  imply  no  promise  to  pay  for  them 
again.    Judgment  affirmed.     The  other  justices  concurred.^ 

*  Accord,  Sloss  Iron  Co.  v.  Harvey,  116  Ala.  656  (1897),  the  court  saying: 
"The  appellee  (plaintiff  below)  was  a  county  convict  hired,  under  our  convict 
system,  to  the  appellant  (defendant  below)  to  perform  hard  labor.  The 
statute  provides  that  such  convicts  shall  not  be  required  to  work  on  Sunday, 
Christmas  Day,  Fourth  of  July,  or  on  Thanksgiving  Day.  Acts  1894-95, 
p.  858,  §  40.  .  .  .  The  defendant,  having  the  plaintiff  in  its  custody  as  a 
convict,  for  the  purpose  of  subjecting  him  to  hard  labor,  required  him  to  do 
this  work  on  the  prohibited  days.    The  plaintiff  submitted  to  this  require- 


INTERFERENCE    WITH    STATUS    OR    CONTRACT.  635 

vi.  Interference  with  Status  or  Contract. 

LIGHTLY  V.  CLOUSTON. 

I  Taunt.  112. — 1808. 

This  was  an  action  of  indebitatus  assumpsit  "for  work  and  labor 
performed  for  the  defendant  at  his  request,  by  one  Thomas  Sinclair, 
the  apprentice  of  the  plaintiff  legally  bound  to  him  by  indenture, 
for  a  term  of  years  at  the  time  of  the  work  and  labor  so  performed 
existing  and  unexpired,  and  to  the  profits  and  receipts  of  whose 
work  and  labor  the  plaintiff  was,  as  the  master  of  the  said  appren- 
tice, by  law  entitled."  The  defendant  seduced  the  apprentice  from 
on  board  the  plaintiff's  ship  in  Jamaica,  and  employed  him  as  a  mar- 
iner to  assist  in  navigating  his  own  ship  from  Port  Royal  home. 
The  cause  was  tried  at  the  sittings  after  Trinity  term  last  before 
Mansfield,  Ch.  J.  The  jury  found  a  verdict  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court  on  the  following  objection,  namely, 
that  the  plaintiff  ought  to  have  declared  in  a  special  action  on  the 
case,  and  that  indebitatus  assumpsit  would  not  lie. 

Mansfield,  C.  J. — It  is  difficult  upon  principle  to  distinguish 
this  case  from  those  that  have  arisen  on  bankruptcies  and  execu- 
tions, and  in  which  it  has  been  held  that  trover  may  be  converted 
into  an  action  for  money  had  and  received,  to  recover  the  sum  pro- 
duced by  the  sale  of  the  goods.  I  should  much  doubt  the  case  of 
Smith  &  Hodson  (4  T.  R.  217),  but  that  I  remember  a  case  so  long 
back  as  the  time  of  Lord  Chief  Justice  Eyre  in  the  reign  of  George 
the  Second,  in  which  the  same  thing  was  held.  I  should  have 
thought  it  better  for  the  law  to  have  kept  its  course,  but  it  has  now 
been  long  settled,  that  in  cases  of  sale,  if  the  plaintiff  chooses  to 
sue  for  the  produce  of  that  sale  he  may  do  it ;  and  the  practice  is 

ment  under  the  restraint  and  coercion  of  imprisonment  and  the  command  of 
his  keeper.  It  was  involuntary.  There  can  be  no  doubt,  we  think,  that  the 
circumstances  repelled  all  inference  or  implication  of  a  promise  to  pay  for 
the  services.  The  acts  of  the  defendant  in  compelling  the  performance  of 
the  labor  were  tortious.  They  were  trespasses,  committed  by  direct  force. 
The  imprisonment  at  the  place  and  for  the  purposes  of  the  unlawful  exac- 
tions of  labor  was,  for  the  time  being,  unauthorized  by  law.  Quiet  submis- 
sion to  the  exactions  made  them  none  the  less  trespasses.  Cooley,  Torts, 
169,  170.  These  being  the  conditions,  an  action  ex  contractu,  of  course,  will 
not  lie." 

Centra,  see  Patterson  v.  Prior,  18  Ind.  440,  reported  herein  at  p.  587;  and 
see  also,  Abbott  v.  Town  of  Fremont,  34  N.  H.  432  (1S57),  where  it  is  held 
that  "if  overseers  of  the  poor  retain  in  their  charge,  as  a  pauper,  an  in- 
sane person,  not  needing  relief,  for  the  sake  of  a  profit  to  be  made  for 
the  town  out  of  his  labor,  and  they  let  out  his  labor  for  a  year  to  one  who 
pays  the  town  an  agreed  sum  beyond  providing  for  the  insane  person's 
support,  such  insane  person  may  waive  his  remedy  against  the  overseers  for 
the  personal  injury,  and  recover  the  money  of  the  town  in  an  action  for 
money  had  and  received." 


/ 

636  WAIVER   OF   TORT. 

beneficial  to  the  defendant,  because  a  jury  may  give  in  damages 
for  the  tort  a  much  greater  sum  than  the  value  of  the  goods.  In 
the  present  case  the  defendant  wrongfully  acquires  the  labor  of  the 
apprentice ;  and  the  master  may  bring  his  action  for  the  seduction. 
But  he  may  also  waive  his  right  to  recover  damages  for  the  tort,  and 
may  say  that  he  is  entitled  to  the  labor  of  his  apprentice,  that  he  is 
consequently  entitled  to  an  equivalent  for  that  labor,  which  has  been 
bestowed  in  the  service  of  the  defendant.  It  is  not  competent  for 
the  defendant  to  answer  that  he  obtained  that  labor,  not  by  contract 
with  the  master,  but  by  wrong ;  and  that  therefore  he  will  not  pay 
for  it.  This  case  approaches  as  nearly  as  possible  to  the  case  where 
goods  are  sold,  and  the  money  has  found  its  way  into  the  pocket 
of  the  defendant. 

Heath,  J. — So  long  back  as  the  time  of  Charles  the  Second  it 
was  held  that  the  title  to  an  office,  under  an  adverse  possession, 
might  be  tried  in  an  action  for  the  fees  of  the  office  had  and  re- 
ceived ;  and  Holt,  Ch.  J.,  held  it  clear  law  that  if  a  person  goes  and 
receives  my  rents  from  my  tenants,  I  may  bring  my  action  against 
him  for  money  had  and  received.  It  is  for  the  benefit  of  the  de- 
fendant that  this  form  of  action  should  be  allowed  to  prevail,  for  it 
admits  of  a  set-off,  and  deductions,  which  could  not  be  allowed  in 
an  action  framed  on  the  tort. 

Rule  discharged.^ 


vii.  Usurpation  of  Office. 

ROSALIE  KREITZ,  admx.,  v.  BEHRENSMEYER. 

149  III.  496. — 1894. 

Phillips,  J. — At  the  election  in  November,  A.  D.  1886,  John  B. 
Kreitz  and  one  Behrensmeyer  were  candidates  for  election  to  the 
office  of  county  treasurer  of  Adams  county,  111.,  and,  on  the  canvass 
of  the  returns,  Kreitz  was  declared  elected  by  a  plurality  of  four- 
teen votes ;  and,  a  certificate  being  made,  a  commission  was  issued 
to  him  by  the  governor,  as  the  duly-elected  county  treasurer  of 
Adams  county,  whereupon  he  qualified,  and  entered  upon  the  dis- 
charge of  the  duties  of  that  office, — continuing  to  occupy  the  office, 
and  discharge  its  duties,  until  his  death,  in  1890.  Appellee,  by 
proper  notice  and  petition,  contested  the  election  of  Kreitz,  which, 
after  extended  litigation,  finally  resulted  in  appellee  being  declared 
duly  elected  to  the  office  of  county  treasurer  of  Adams  county,  by 
the  judgment  of  this  court,  reported  as  Behrensmeyer  v.   Kreitz, 

'Accord,  Ilopf  V.  U.  S.  Baking  Co.,  6  Misc.  158  (N.  Y.  Supreme  Ct.) 
(1892),  where  it  was  held  tliat  a  father,  by  suing  for  his  minor  son's  wages, 
had  waived  tlie  tort  of  tlie  defendant  in  harboring  the  son  against  liis  father's 
wish. 


USURPATION    OF   OFFICE.  637 

135  111.  591,  26  N.  E.  704.  Kreitz  having  died  before  the  filing  of 
this  opinion,  such  proceedings  were  had  in  this  court  that  the  judg- 
ment of  reversal  was  entered  nunc  pro  tunc  as  of  the  nth  day  of 
June,  A.  D.  1890,  which  declared  Behrensmeyer  elected  to  said  of- 
fice. On  the  6th  of  April,  1892,  appellee  filed  a  claim  against  the 
estate  of  John  B.  Kreitz  in  the  county  court  of  Adams  county,  seek- 
ing to  recover  the  sum  of  $10,000  for  fees  and  salary  received  by 
Kreitz  for  Behrensmeyer's  use,  and  interest  thereon.  On  the  pe- 
tition of  appellant,  the  venue  on  this  claim  so  filed  was  changed 
from  the  county  court  to  the  circuit  court  of  Adams  county,  where 
a  trial  w-as  had  which  resulted  in  a  finding  and  judgment  in  favor 
of  appellee,  and  against  appellant,  for  the  sum  of  $7,333,  to  be  paid 
in  due  course  of  administration,  as  a  claim  of  the  seventh  class. 
Appellant  prosecuted  an  appeal  from  that  judgment  to  the  appel- 
late court  of  the  third  district,  where  the  judgment  was  affirmed; 
and  she  now  brings  the  record  to  this  court  by  appeal,  and  urges 
that  appellee  has  no  cause  of  action,  and  asks  that  this  case  may  be 
considered  as  one  of  first  impression,  regardless  of  what  was  said 
by  this  court  in  Mayfield  v.  Moore,  53  111.  428, — arguing  that  that 
case  was  decided  under  the  constitution  of  1848,  and  that  by  the 
provisions  of  the  constitution  of  1870  a  dififerent  rule  must  prevail, 
inasmuch  as,  by  the  provisions  of  the  latter,  the  fees  of  the  office 
belong  to  the  county,  from  which  a  salary  is  paid  for  the  discharge 
of  the  duties  of  the  office,  while  under  the  former  the  fees  belonged 
to  the  officer. 

It  is  conceded  that  no  statute  exists  in  this  state  declaring  the 
rights  of  a  de  jure  officer  to  recover  from  a  de  facto  officer  the 
salary  paid  such  de  facto  officer,  who  has  discharged  the  duties  of 
the  office  under  a  wrongful  or  a  mistaken  purpose.  There  is  no 
legislation  on  that  subject  in  this  state.  The  right  of  recovery,  if 
it  exists,  depends,  therefore,  on  the  principles  of  the  common  law. 
The  common  law  is  a  system  of  elementary  rules  and  of  general  ju- 
dicial declarations  of  principles,  which  are  continually  expanding 
with  the  progress  of  society,  adapting  themselves  to  the  gradual 
changes  of  trade,  commerce,  arts,  inventions,  and  the  exigencies 
and  usages  of  the  country.  Judicial  decisions  of  common-law  courts 
are  the  most  authoritative  evidence  of  what  constitutes  the  com- 
mon law.  By  chapter  28,  Starr  &  C.  St,  111.,  the  common  law  of 
England  is  declared  in  force  in  this  state.  By  reference  to  the  de- 
cisions of  the  common-law  courts  of  England,  the  common  law  of 
that  country  is  to  be  found.  An  examination  of  the  decisions  of 
the  courts  of  that  country  shows  a  uniform  declaration  of  the  prin- 
ciple that  a  de  jure  officer  has  a  right  of  action  to  recover  against 
an  officer  de  facto  by  reason  of  the  intrusion  of  the  latter  into  the 
office,  and  his  receipt  of  the  emoluments  thereof.  Among  others, 
the  following  opinions  of  English  courts  may  be  referred  to  as  sus- 
taining this  right  of  recovery:  Vaux  v.  Jefferson,  2  Dyer  114; 
Arris  v,  Stukely,  2  Mod.  260;  Lee  v.  Drake,  2  Salk.  468:  Webb's 


638  WAIVER   OF    TORT. 

Case,  8  Coke  45.  By  the  adoption  of  the  common  law  of  England 
the  principle  announced  in  these  cases  was  adopted  as  the  law  of 
this  state,  for  the  principle  is  of  a  general  nature,  and  applicable 
to  our  condition.  On  the  basis  of  a  sound  public  policy,  the  prin- 
ciple commends  itself,  for  the  reason  that  one  would  be  less  liable 
to  usurp  or  wrongfully  retain  a  public  office,  and  defeat  the  will  of 
the  people  or  the  appointing  power,  if  no  benefit  but  a  loss  would  re- 
sult from  wrongful  retention  or  usurpation  of  an  office.  The  question 
has  frequently  been  before  the  courts  of  the  different  states  and  of 
the  United  States,  and  the  great  weight  of  authority  sustains  the  doc- 
trine of  the  common  law,  as  shown  by  the  opinions  of  the  judges 
in  different  states ;  and  which  in  most  of  the  states  are  based  on  the 
common  law,  without  reference  to  any  statute.  The  following 
cases  are  in  point:  U.  S.  v.  Addison,  6  Wall.  291 ;  Dolan  v.  Mayor, 
68  N.  Y.  274;  Glascock  v.  Lyons,  20  Ind.  i ;  Douglass  v.  State,  31 
Ind.  429 ;  Currey  v.  Wright,  9  Lea  247 ;  Kessel  v.  Zeiser,  102  N. 
Y.  114,  6  N.  E.  574;  Nichols  v.  MacLean,  loi  N.  Y.  526,  5  N.  E. 
347 ;  People  v.  Miller,  24  Mich.  458 ;  Hunter  v.  Chandler,  45  Mo. 
452;  People  V.  Smith,  28  Cal.  21;  Petit  v.  Rousseau,  15  La.  Ann. 
239.  And  the  only  case  enunciating  a  different  rule  is  that  of 
Stuhr  V,  Curran,  44  N.  J.  Law  181,  where  the  conclusion  was 
reached  by  a  divided  court.^ 

While  it  is  true  that  in  this  state  a  public  ofiice  is  not  a  franchise 
nor  an  incorporeal  hereditament,  but  a  mere  public  agency  created 
for  the  benefit  of  the  state,  yet  the  salary  or  emoluments  annexed 
to  a  public  office  are  incident  to  the  right  to  the  office,  and  not  to 
the  mere  exercise  of  its  duties,  or  its  occupancy ;  and  whether  the 
compensation  of  the  officer  is  by  fees,  or  a  salary,  the  rule  is  the 
same.  People  v.  Smith,  supra;  McVeany  v.  Mayor,  80  N.  Y.  185 ; 
Comstock  V.  Grand  Rapids,  40  Mich,  397. 

Such  being  the  rule,  the  constitution  of  1870  did  not  change  the 
law,  in  this  respect,  from  what  it  was  under  the  constitution  of 
1848.  [Here  follozvs  a  discussion  of  the  sections  of  the  constitu- 
tion of  i8yo.]  The  provisions  of  those  sections  creating  no  differ- 
ent rights,  so  far  as  a  de  jure  officer  is  concerned,  the  rule  an- 
nounced by  this  court  in  Mayfield  v.  Moore,  53  111.  431,  is  as  ap- 
plicable under  the  present  constitution  as  under  the  constitution 
of  1848,  and  in  harmony  with  the  rule  of  the  common  law  of  Eng- 
land, as  well  as  with  the  great  weight  of  authority  in  this  country, 
and  has  been  followed  by  this  court  in  more  recent  adjudications. 
Farwell  v.  Adams,  112  111.  58;  Waterman  v.  Railroad  Co.,  139  111. 
669,  29  N.  E.  689.  We  adhere  to  the  rule  as  announced  in  Mayfield 
V.  Moore. 

*In  Stuhr  v.  Cnrran  C1882),  the  question  is  exhaustively  discussed  and 
the  authorities  reviewed  in  the  prevailing  opinion  by  Van  Svckel,  J.  (pp. 
183-192),  and  in  the  dissenting  opinion  by  Beasley,  C.  J.  (pp.  192-206). 
This  decision  of  the  New  Jersey  Court  of  Errors  and  Appeals  was  by  a  vote 
of  7  to  5. 


USURPATION    OF   OFFICE.  639 

It  is  further  insisted  that  appellee  cannot  recover  because  he  was 
never  fully  qualified,  not  being  commissioned  by  the  governor,  and 
not  filing  bonds,  as  collector,  for  the  years  1888-89-90.  As  was 
said  in  Mayfield  v.  Moore,  supra:  "Under  the  law,  so  soon  as  a 
majority  of  the  votes  were  cast  for  appellant  at  the  election  held 
in  pursuance  to  law,  he  became  legally  and  fully  entitled  to  the 
office.  The  title  was  as  complete  then  as  it  ever  was,  and  no  sub- 
sequent act  lent  the  least  force  to  the  right  to  the  place.  The 
commission  was  evidence  of  title,  but  not  the  title.  The  title  was 
conferred  by  the  people ;  and  the  evidence  of  the  right,  by  the 
law."  The  contested  election  was  continued  through  a  long  period 
of  litigation,  and,  by  the  final  adjudication  of  a  court  of  competent 
jurisdiction,  the  appellee's  right  to  the  office  was  determined  in  his 
favor.  That  determination  was  after  the  term  expired  for  which 
he  had  been  elected.  His  right  to  recover  does  not  depend  upon 
his  possession  of  a  commission.  The  judgment  of  the  court  de- 
termined his  right.  Neither  is  his  right  to  recover  affected  by  the 
fact  that  he  failed  to  give  bond  as  collector  for  the  years  1888,  1889, 
1890,  and  failed  to  qualify.  The  statute  requiring  the  oath  of 
office  and  bond  to  be  given  by  or  within  a  specified  time  applies  only 
to  a  person  to  whom  the  certificate  of  election  has  been  given,  or 
who  has  been  declared  elected.  Where  an  election  has  been  contested, 
and  the  contestant  is  declared  elected,  the  requirement  to  qualify 
within  a  prescribed  time  does  not  apply  until  the  termination  of  the 
contest.  Farwell  v.  Adams,  supra.  The  law  will  not  require  a  use- 
less act,  and  by  taking  the  oath  of  office,  and  filing  bonds,  as  col- 
lector, for  the  several  years  of  1888-89-90,  no  purpose  could  have 
been  subserved,  as  the  contest  was  not  determined  until  after  the 
full  term  had  expired.  Appellee's  right  of  recovery  is  therefore  not 
affected  by  these  considerations.     *     *     *     * 

We  do  not  desire  to  enter  on  a  discussion  of  the  question  as  to 
whether  it  is  a  hardship  on  Kreitz,  or  his  estate,  that  he  should  be 
held  to  receive  no  compensation  for  his  services ;  for,  however 
great  that  hardship  may  be,  the  rule  of  law  has  been  long  settled 
in  this  state  that  the  de  jure  officer  may  recover  the  fees  or  salary 
paid  to  a  de  facto  officer.  The  rule  is  in  accord  with  a  sound  pub- 
lic policy.  Its  tendency  is  that  there  would  be  less  danger  or  fre- 
quency of  usurpation  or  intrusion  into  an  office.  Its  tendency  is  to 
cause  greater  caution  in,  and  purify,  elections,  as  one,  with  such 
danger  attendant  on  illegal  voting,  would  abstain  from  encouraging 
it.  Its  tendency  is  to  cause  a  careful  investigation  into  the  right  to 
an  office,  where  a  notice  of  contest  is  served  and  petition  filed.  Pub- 
lic interest  is  in  accord  with  private  right,  when  it  is  held  that  one 
lawfully  elected  to  an  office,  and  deprived  of  the  office  by  another, 
may  recover  the  salary  or  fees  attendant  on  the  office.  The  rule  is 
not  changed  by  reason  of  one  holding  a  certificate  of  election,  and 
entering  in  good  faith,  under  a  mistaken  belief  of  right.  However 
much  the  good  faith  of  one  entering,  the  right  exists  somewhere ; 
and,  if  the  right  existed  in  another,  he  is  an  intruder  in  the  office, 


640  QUASI-CONTRACT   AND    EQUITY, 

and  enters  at  his  peril.  As  was  said  in  Mayfield  v.  Moore,  supra: 
"After  the  vote  was  canvassed  by  the  clerk  and  justice  of  the  peace, 
appellant  promptly  gave  appellee  notice  that  he  would  contest  the 
election,  and  specifically  pointed  out  the  grounds.  Being  thus  ap- 
prized of  the  grounds  upon  which  appellant  based  his  claim,  the 
sources  of  information  were  open  to  him  to  learn  the  facts,  and  to 
have  acted  upon  them.  Failing  to  learn  them,  or,  having  done  so, 
not  heeding  them,  he  has  no  reason  to  complain  if  he  has  to  respond 
to  the  wrong  perpetrated  on  another.  He  has  intruded  into  ap- 
pellant's office  without  right,  and  has  received  the  profits  of  the  of- 
fice ;  and,  like  the  person  entering  into  the  land  of  another  with  a 
defective  title,  he  must  answer  for  the  profits."  We  find  no  error, 
and  the  judgment  of  the  appellate  court  is  affirmed.      Affirmed.^ 


D.     Relation  of  Quasi-Contract  to  Equity. 
CASE  v.  ROBERTS, 
Holt  (N.  P.)  500.— 1817. 

This  was  an  action  for  money  had  and  received.  The  plaintifif 
had  paid  fifty  pounds  into  the  hands  of  the  defendant,  for  the  pur- 
pose of  concluding  an  action  for  a  breach  of  promise  of  marriage, 
brought  by  a  relation  of  the  plaintiff.  The  plaintiff's  counsel  proved 
the  payment  of  the  money  for  this  specific  purpose,  and  then  put 
in  a  letter  of  the  defendant's,  written  to  the  plaintiff,  in  which  he 
gave  an  account  that  he  had  expended  the  money  in  a  journey  to 
Bristol,  for  the  purposes  of  the  cause.  The  plaintiff's  counsel  then 
contended  that  the  defendant  ought  not  to  have  gone  to  Bristol; 
that  it  was  not  necessary  for  the  action ;  and  that  he  was  not  au- 
thorized to  go  there.  He  likewise  falsified  in  some  particulars  the 
defendant's  account. 

Best,  Serjeant,  and  Gaselee,  for  the  defendant,  insisted  that  the 
present  action  could  not  be  maintained.  If  money  is  advanced,  and 
the  purpose  for  which  it  is  advanced  fails,  an  action  lies  to  recover 
it  back,  but  this  was  in  substance  a  trust ;  an  action  of  account  might 
lie,  or  the  plaintiff  might  go  into  a  court  of  equity,  but  money  had 
and  received  could  not  be  maintained.  The  defendant  has  furnished 
an  account,  and  discharged  himself  by  it ;  if  he  has  been  guilty  of 
a  breach  of  trust  the  plaintiff  must  have  recourse  to  another  tribu- 
nal, 

BuRROUGH,  J, — If  money  is  paid  into  the  hands  of  a  trustee  for 
a  specific  purpose  it  cannot  be  recovered  in  an  action  for  money 

*  Accord,  Booker  v.  Donohoc,  95  Va.  359   (1897). 


QUASI-CONTRACT   AND    EQUITY.  64I 

had  and  received  until  that  specific  purpose  is  shown  to  be  at  an 
end.  The  action  for  money  had  and  received  must  not  be  turned 
into  a  bill  in  equity  for  the  purpose  of  discovery.  If  the  plaintiff 
show  that  the  specific  purpose  has  been  satisfied,  that  it  has  ab- 
sorbed a  certain  sum  only,  and  left  a  balance,  such  balance  (the 
trust  being  closed)  becomes  a  clear  and  liquidated  sum  for  which 
an  action  will  lie  at  law.  Whilst  the  matter  remains  in  account, 
and  is  charged  with  the  specific  trust,  the  action  for  money  had 
and  received  will  not  lie. 

The  cause  was  afterward  settled. 


ALLEN,  Assignee  of  Prior,  a  Bankrupt,  v.  IMPETT  and  An- 
other. 

8  Taunt.  (Ex.  Ch.)  263.— 1818. 

Assumpsit  for  money  had  and  received.  At  the  trial,  before 
Dallas,  J.,  at  the  London  sittings  after  the  last  term,  it  appeared 
that  the  defendants  were  trustees  of  the  marriage  settlement  of  the 
bankrupt,  and  that  certain  stock  thereby  settled  was  held  by  them, 
upon  trust,  to  pay  the  dividends  to  the  bankrupt  during  his  life ; 
that  he  had  been  permitted  by  the  defendants  to  receive  these  divi- 
dends, until  the  issuing  of  the  commission  against  him,  which  hap- 
pened in  December,  1815  ;  that  in  August,  18 16,  the  defendants  ex- 
ecuted a  power  of  attorney  to  a  third  party  to  receive  the  dividends, 
who,  accordingly,  received  two  half-year's  dividends,  due  in  April 
and  October,  1816,  and  paid  them  over  to  the  wife  of  the  bank- 
rupt, and  also  received  another  half-year's  dividend,  due  in  April, 
1817,  which  he  paid  over  to  one  of  the  defendants.  The  present  ac- 
tion was  brought  to  recover  the  total  amount  of  these  dividends. 
Dallas,  J.,  bemg  of  opinion  that  the  defendants  were  liable  in 
equity  only,  and  that  the  action  was  not  maintainable,  directed  a 
non-suit. 

Copley,  Serjt.,  had  obtained  a  rule  nisi  in  the  last  term  to  set 
aside  the  non-suit,  and  enter  a  verdict  for  the  plaintiff  for  the  whole 
sum  sought  to  be  recovered.  He  cited  Moses  v.  Macferlan,  2  Burr. 
1005,  s.  c.  I  W.  Bl.  219. 

Blosset,  Serjt.,  now  showed  cause,  and  contended  that  the  ac- 
tion could  not  be  maintained,  as  the  plaintiff  had  no  kgal  right  to 
the  money,  but  had  merely  an  equitable  interest ;  and  that,  at  all 
events,  as  the  obligation  arose  from  a  deed,  such  deed  should  have 
been  declared  upon.  In  support  of  the  first  objection  he  cited  Co. 
Litt.  272b;  Chudleigh's  case,  i  Rep.  121b;  Foorde  v.  Hoskins,  2 
Bulst.  336,  and  in  support  of  the  second,  Atty  v.  Parish,  I  N.  R. 
104. 

Woodruff's  Cases — 41 


642  QUASI-CONTRACT   AND    EQUITY. 

Copley,  Serjt.,  in  support  of  the  rule,  contended  that,  as  the 
trustees  had  given  an  authority  to  receive  the  dividends,  under  which 
they  were  actually  received,  there  was  nothing  in  the  objections 
which  had  been  urged  to  affect  the  plaintiff's  right  to  recover. 

Per  Curiam. — This  action  is  brought  to  recover  the  amount  of 
dividends  of  stock  to  which  the  bankrupt  was  entitled,  and  which 
his  trustees  have  received  since  the  bankruptcy,  and  applied  to 
various  purposes.  With  full  notice  of  the  bankruptcy,  they  refuse  to 
pay  the  money  over  to  the  assignees.  There  cannot  be  any  difficulty 
in  sustaining  this  action,  the  whole  of  the  money  having  been  vir- 
tually received  by  the  trustees. 

Rule  absolute.    Gibbs,  C.  J.,  was  absent. 


ADAIR  V.  WINCHESTER  et  al. 
7  G.  &  J.  (Md.)  114.— 1835. 

Appeal  from  chancery.  The  appellees  claiming  under  a  deed  of 
trust  to  them  from  Murray  &  Payson,  partners  in  trade,  bearing  the 
date  of  the  30th  of  December,  1826,  exhibited  their  bill  against  the 
appellant,  and  his  partner,  John  Adair  (since  deceased)  and  Murray 
&  Payson,  claiming  on  account  of,  and  payment  of  the  proceeds 
of  sundry  promissory  notes,  which  it  was  alleged,  had  been  de- 
posited with  the  Adairs,  by  the  agent  of  Murray  &  Payson,  to  secure 
the  payment  of  $1,500,  loaned  by  the  former  to  the  latter. 

The  bill  alleged  that  Murray  &  Payson,  trading  under  the  firm 
of  A.  B.  Murray  &  Co.,  being  pressed  for  money  in  June,  1826, 
delivered  to  one  Reyburn,  as  their  agent,  four  promissory  notes, 
amounting  in  the  whole  to  $3,229.04  to  get  discounted  for  their  use. 
That  failing  to  get  them  discounted,  the  agent  with  the  approba- 
tion of  Murray  &  Co.,  placed  them  by  the  way  of  pledge,  with  the 
Adairs,  to  secure  the  payment  of  $1,500,  which  they  agreed  to  and 
di '  loan  upon  them.  That  subsequently  in  July  of  the  same  year  the 
firm  of  Murray  &  Co.  being  found  to  be  insolvent,  the  partnership 
was  dissolved,  and  the  defendants  formally  notified,  by  an  agent  spe- 
cially sent  for  that  purpose,  that  the  notes  in  question  were  their 
property,  and  the  surrender  of  the  same  demanded  upon  a  tender 
of  the  entire  principal  and  interest  of  the  amount  advanced  upon 
them ;  and  that  the  surrender  so  demanded  was  refused.  That 
since  then  the  notes  have  all  been  paid.  Prayer  for  an  account  of 
the  proceeds  of  the  notes ;  that  the  balance  found  due  may  be  de- 
creed to  be  paid  to  the  complainants,  and  for  general  relief. 

The  answer  of  the  defendants  admitted  the  deposit  of  the  notes 
with  them  by  Reyburn,  the  advance  of  $1,500  upon  them,  and  their 
subsequent  payment,  but  they  denied  all  knowledge  of  ]\Turray  & 
Co.  in  the  transaction,  insisting  that  they  dealt  with  Reyburn  as  the 


QUASI-CONTRACT   AND    EQUITY,  643 

owner  of  the  notes,  and  gave  him  a  receipt  for  the  same  as  security 
for  the  principal  and  interest  of  the  sum  loaned.  Tiicy  declare  their 
willingness  to  account  to  Reyhurn,  to  whom  alone  they  are  respon- 
sible, and  to  him  only  upon  the  production  of  their  receipt ;  and 
in  conclusion  they  state,  that  the  complainants,  if  injured,  should 
seek  redress  in  a  court  of  common  law,  and  not  in  a  court  of  chan- 
cery, which  has  no  jurisdiction  over  the  subject  of  their  complaint. 

Bland,  Chancellor,  decreed  an  account,  and  the  auditor  having 
stated  one  accordingly,  the  same  was  subsequently  ratified,  and  the 
amount  ordered  to  be  paid  to  the  complainants.  From  this  decree 
the  defendants  appealed  to  the  court  of  appeals. 

DoRSEY,  J. — The  first  question  for  our  consideration  is :  Had 
the  chancery  court  jurisdiction  over  such  a  case  as  is  presented  by 
the  bill  of  complaint  ?  View  the  case  as  you  will,  and  it  is,  in  effect, 
nothmg  more  than  an  action  for  money  had  and  received.  That  by 
proceeding  in  a  court  of  law  ample  and  perfect  redress  for  the 
wrong  complained  of  could  have  been  obtained,  has  not  been,  and 
cannot  be  denied.  How,  then,  can  the  appellee  sustain  the  right  of 
the  chancellor  to  adjudicate  in  such  a  case,  consistently  with  the 
well  settled  general  principle  found  in  all  the  books  on  the  subject, 
and  announced  as  text  law  in  Mitf.  PL  123,  that  the  courts  of  equity 
will  not  assume  jurisdiction  where  the  powers  of  the  ordinary 
courts  are  sufficient  for  the  purposes  of  justice. 

Is  there  anything  in  the  facts  of  this  case,  either  as  charged  in 
the  bill,  or  disclosed  in  the  proof,  which  removes  it  from  the  opera- 
tion of  the  general  rule  ?  The  mere  fact  of  the  complainant's  stand- 
ing in  the  character  of  an  assignee  will  not  sustain  the  jurisdiction. 
Although  in  a  court  of  chancery  the  assignor  is  looked  upon  as  the 
trustee  of  the  assignee,  the  cestui  que  trust,  equity  does  not  lend  its 
aid  to  enforce  the  rights  of  the  assignee  of  a  chose  in  action,  unless 
its  interposition  becomes  necessary,  by  reason  of  the  inability  of  a 
court  of  common  law,  to  do  him  adequate  justice ;  notwithstanding, 
in  the  language  of  l  Mad.  Ch.  Pr.  545,  the  assignment,  "Is  consid- 
ered in  the  nature  of  a  declaration  of  trust,"  and  in  546,  that  courts 
of  equity  "will  protect  the  assignment  of  a  chose  in  action  as  much 
as  courts  of  law  will  that  of  a  chose  in  possession."  The  same  author 
on  page  547  states,  "that  an  assignee  of  a  chose  in  action,  as  he  is 
entitled  to  all  the  remedies  of  the  seller,  so  he  takes  it  subject  to 
the  same  equity,  as  it  was  liable  to  in  the  assignor's  hands."  He 
must  pursue  his  remedies  in  the  same  tribunals  in  which  the  as- 
signor, had  no  assignment  been  made,  was  bound  to  seek  them. 
When  obstacles  growing  out  of  the  assignment  are  so  interposed 
as  to  hinder,  or  render  extremely  difficult,  the  successful  prosecu- 
tion of  his  remedies  at  law,  then  will  a  court  of  equity,  upon  the 
appropriate  application,  step  forward  and  extend  to  him  that  equit- 
able protection  which  his  exigencies  demand.  But  this  protective 
interposition  is  never  afforded,  imtil  rendered  necessary  by  the  oc- 
casion. Is  there  any  thing  in  the  allegations  of  the  bill,  or  the  tes- 
timony adduced  in  their  support  in  respect  to  the  situation  or  con- 


644  QUASI-CONTRACT   AND   EQUITY. 

duct  of  the  assignor  which  renders  a  resort  to  a  court  of  equity  in- 
dispensable to  prevent  a  failure  of  justice?  Does  it  appear  that  the 
appellees,  whilst  seeking  redress  in  a  court  of  law,  would  have  en- 
countered a  shadow  of  difficulty,  to  which  the  assignor  himself 
would  not  have  been  subjected?  Nothing  of  the  kind  is  discover- 
able. Is  it  charged  in  the  bill,  or  does  the  proof  warrant  the  infer- 
ence that  facts  essential  to  the  establishment  of  the  plaintiffs  claim 
rest  exclusively  within  the  knowledge  of  the  defendants,  and  that 
their  disclosure  can  only  be  extorted  by  a  bill  of  discovery?  The 
proceedings  furnish  no  such  intimation.  Can  their  claim  be  classed 
under  any  of  the  heads  wherein  courts  of  law  and  equity  have  a 
general  concurrent  jurisdiction?  Certainly  not.  If  then  the  juris- 
diction of  the  chancery  court  in  the  case  at  bar  can  be  sustained  at 
all,  it  must  be  by  reason  of  its  exclusive  jurisdiction  in  most  matters 
of  trust  and  confidence.  But  this  is  not  such  a  trust  as  falls  under 
the  exclusive  control  of  a  court  of  equity.  It  is  a  quasi  trust  of 
which  courts  of  law  take  judicial  cognizance,  are  competent  to  ad- 
minister justice  adequate  and  complete,  and  over  which  a  court  of 
chancery,  under  ordinary  circumstances  had  no  jurisdiction.  This 
doctrine,  when  connected  with  the  rule  before  recited,  from  Mitford 
on  Pleading,  is  substantially  asserted  in  Cooper  Eq.  PI.  27,  where 
in  treating  of  the  jurisdiction  of  a  court  of  equity  it  is  said,  "it 
therefore  exercises  an  exclusive  jurisdiction  in  most  matters  of  trust 
and  confidence,  but  not  in  all,  for  various  species  of  trusts,  as  de- 
posits, and  all  manner  of  bailments,  and  especially  that  implied  con- 
tract, so  highly  beneficial  and  useful,  of  having  undertaken  to  ac- 
count for  money  received,  to  another's  use,  which  is  the  ground  of  an 
action  on  the  case,  are  cognizable  at  law.  But  in  cases  of  trusts,  or 
second  uses  (as  they  have  been  sometimes  called)  the  exclusive 
jurisdiction  of  the  courts  of  equity  is  fully  established."  Our  views 
upon  the  subject  are  supported,  too,  by  3  Black.  Com.  432,  where 
that  learned  commentator,  after  speaking  of  those  subjects,  over 
which  courts  of  law  and  equity  have  concurrent  jurisdiction,  and 
of  those  in  which  a  court  of  chancery  has  the  exclusive  jurisdic- 
tion (amongst  which  latter  enumeration  he  includes  what  he  calls 
a  technical  trust),  remarks,  "but  there  are  other  trusts  which  are 
cognizable  in  a  court  of  law,  as  deposits,  and  all  manner  of  bail- 
ments, and  especially  that  implied  contract,  so  highly  beneficial  and 
useful,  of  having  undertaken  to  account  for  money  received  to  an- 
other's use,  which  is  the  ground  of  an  action  on  the  case,  almost 
as  universally  remedial  as  a  bill  in  equity."  A  similar  doctrine  has 
been  sanctioned  by  an  enlightened  tribunal  in  a  sister  state.  Ash- 
ley's Adm'rs  and  Heirs  v.  Denton,  i  Littell  86.  Where  the  court, 
after  stating  uses  and  trusts  to  be,  "a  favored  part  of  the  jurisdic- 
tion of  the  chancellor,"  further  observes,  "but  notwithstanding  this 
acknowledged  authority,  it  cannot  be  extended  to  every  case,  where 
one  party  has  trusted  another,  or,  in  other  words,  placed  a  con- 
fidence which  has  been  abused.  If  so,  every  case  of  bailment,  and 
every  instance  of  placing  chattels  by  loan  or  hire  would  be  swal- 


y 

QUASI-CONTRACT   AXD   EQUITY.  645 

lowed  up  by  courts  of  equity.  Nay,  every  case  where  credit  was 
given  for  debt  or  duty  would  soon  be  drawn  into  the  same  vortex. 
It  ought,  then,  to  be  confined  to  cases  of  controlHng  rights,  vested 
and  remaining  in  trustees,  created  as  such  in  some  proper  mode, 
and  not  be  extended  to  all  cases  of  abused  confidence." 

In  matters  of  trust,  of  the  kind  now  before  the  c::urt,  we  hold 
that  there  is  no  ordinarily  concurrent  jurisdiction  in  courts  of  law 
and  courts  of  equity ;  and  we  feel  no  disposition  to  carry  the  powers 
of  a  court  of  chancery  further  than  they  have  been  already  legiti- 
mately extended ;  when  by  so  doing,  we  give  to  the  plaintiff,  at 
his  pleasure  to  deprive  the  defendant  of  the  privilege  of  the  trial 
by  jury.  If  authorities  are  necessary  to  show  that  the  mere  fact 
of  the  assignment  confers  no  jurisdiction,  they  may  be  found  in 
Carter  v.  Unit.  Ins.  Co.,  i  Johns.  Ch.  R.  463 ;  Lenox  et  al.  v.  Rob- 
erts, 2  Wheat.  373. 

Believing,  as  we  do,  that  the  chancery  court  has  transcended  its 
authority  in  assuming  the  jurisdiction  it  has  exercised  in  this  case, 
and  that  its  decree  must  therefore  be  reversed,  we  forbear  to  ex- 
press any  opinion  upon  the  other  questions  which  in  the  arguments 
of  the  counsel  w'ere  submitted  to  our  consideration. 

Decree  reversed,  and  bill  dismissed  without  costs  or  prejudice. 


EDDY  V.  SMITH. 

13  Wend.  (N.  Y.)  488.— 1835. 

Error  from  the  mayor's  court  of  the  city  of  Troy.  Eddy  brought 
an  action  of  assumpsit  against  Smith,  and  claimed  to  recover  upon 
the  following  state  of  facts.  Smith  held  a  mortgage  upon  certain 
lots  in  the  city  of  Troy,  executed  to  him  by  one  Shears,  bearing  date 
8th  May,  1827,  conditioned  for  the  payment  of  $250,  and  on  the 
28th  June,  1828,  recovered  a  judgment  against  Shears,  on  an- 
other account,  for  the  sum  of  $88.04,  which  was  a  lien  upon  the 
mortgaged  premises.  Smith  foreclosed  the  mortgage  by  statute  ad- 
vertisement, and  on  the  14th  July,  1829,  sold  the  mortgaged  prem- 
ises to  one  Jared  Hoyt  for  the  sum  of  $423,  which  was  $88.04  more 
than  the  principal  and  interest  of  the  mortgage  and  the  costs  and 
charges  of  the  sale.  On  the  day  of  the  sale,  but  previous  thereto, 
Shears,  the  mortgagor,  for  a  valuable  consideration,  sold  and  con- 
veyed all  his  right  and  interest  in  the  mortgaged  premises  to  Eddy, 
and  the  conveyance  was  duly  recorded.  Notice  of  the  sale  was 
given  to  Smith  immediately  after  the  sale,  and  the  balance  of  the 
purchase  money,  after  satisfying  the  principal  and  interest  and  the 
charges  of  the  sale,  was  demanded  by  Eddy,  who  was  a  bona  fide 
purchaser,  and  did  not  hold  the  conveyance  as  the  trustee  of  Shears, 


646  QUASI-CONTRACT    AND    EQUITY. 

or  of  any  other  person.  The  recorder  non-suited  the  plaintiff,  who 
sued  out  a  writ  of  error. 

Nelson,  J. — The  deed  from  Shears  to  the  plaintiff  below  con- 
veyed to  the  plaintiff  the  premises  conveyed  by  the  mortgage,  sub- 
ject to  that  incumbrance  and  the  lien  of  the  judgment.  These  dis- 
charged, his  title  became  perfect,  but  they  must  be  first  satisfied  out 
of  the  land  or  otherwise.  The  defendant  might  have  levied  the 
amount  of  his  judgment,  and  afterward  foreclosed  his  mortgage, 
the  purchaser  under  the  judgment  holding  subject  to  that  prior 
incumbrance.  Instead  of  pursuing  that  course  he  enforced  the  lat- 
ter lien,  and  the  purchaser  took  the  title  clear  of  the  judgment,  and 
now  the  assignees  of  the  mortgagor  supposes  himself  entitled  to 
the  surplus  money.  The  equity  of  the  case  is  palpable ;  the  only 
question  is  as  to  the  law. 

The  above  exposition  shows  that  the  action  is  well  brought  in  the 
name  of  the  plaintiff.  At  the  time  of  the  sale,  and  when  the  money 
was  received  by  the  defendant,  all  the  interest  in  the  land  over  and 
above  satisfying  the  mortgage  (the  judgment  out  of  the  case),  was 
invested  in  him.  It  was,  therefore,  his  money  raised  out  of  his 
property.  The  right  to  the  money  is  not  derived  from  any  implied 
contract  contained  in  the  mortgage,  which  in  this  state  is  deemed 
a  mere  security  for  the  debt,  but  upon  the  fact  that  he  was  law- 
fully possessed  of  the  title  and  ownership  of  the  premises.  The 
mortgage  being  but  security  for  the  debt,  all  over  it  belonged  to 
the  owner  of  the  fund  out  of  which  it  was  raised.  The  case  of 
Coates  V.  Stewart,  19  Johns.  298,  is  an  authority  on  this  point. 
There  the  plaintiff  sustained  the  action  on  the  ground  that  he  was 
assignee  by  operation  of  law,  i.  e.,  a  purchaser  under  a  judgment 
execution.  Here  the  plaintiff  is  an  assignee,  by  the  act  of  the 
party,  by  deed.  In  neither  case  was  it  an  assignment  of  the  surplus 
moneys,  because  none  existed  till  afterward  raised  out  of  the  estate 
which  had  passed  by  the  assignment. 

The  material  question  in  the  case  is,  whether  the  defense  is  good 
at  law  ?  The  principles  of  this  action  are  liberal,  beyond  that  of  any 
other  known  to  the  practice  of  the  courts.  "It  lies."  says  Mr.  J. 
Blackstone,  "when  one  has  received  money  belonging  to  another, 
without  any  valuable  consideration  given  on  the  receiver's  part ; 
for  the  law  construes  this  to  be  money  had  and  received  for  the  use 
of  the  owner  only,  and  implies  that  the  person  so  receiving  prom- 
ised and  undertook  to  account  for  it  to  the  true  proprietor."  And 
it  is  applicable  in  almost  every  case  where  a  person  has  received 
money,  which,  in  equity  and  good  conscience,  he  ought  to  refund. 
The  action  is  equally  beneficial  to  the  defendant,  because  the  de- 
fense to  the  claim,  as  well  as  the  claim  itself,  is  governed  by  the 
above  principles.  Lord  Mansfield  has  said,  in  Moses  v.  Mac- 
ferlan,  2  Burr.  loio,  "It  is  the  most  favorable  way  in  which  he 
can  be  sued ;  he  can  be  liable  no  further  than  the  money  he  has  re- 
ceived, and  against  that  may  go  into  every  equitable  defense  upon 
the  general  issue ;  he  may  claim  every  equitable  allowance,  etc. ;  in 


QUASI-CONTRACT   AND    EQUITY.  647 

short,  he  may  defend  himself  by  everything,  which  shows  that  the 
plaintiff  ex  crquo  et  bono  is  not  entitled  to  the  whole  of  his  demand, 
or  any  part  of  it."  These  principles  have,  ever  since  their  develop- 
ment, been  recognized  as  sound,  both  in  England  and  here,  and  are 
of  daily  application.  2  Comyn  on  Contr.  i ;  4  Johns.  R.  249 ;  i  Wen- 
dell 360.  They  are,  in  my  judgment,  conclusive  in  favor  of  the  de- 
fense, and  dispense  with  the  trouble  and  expense  of  a  resort  to  an- 
other forum.  Judgment  affirmed. 


BETSEY  RAMSDELL  v.  BUTLER. 

60  Me.  216. — 1872. 

Walton,  J. — This  is  an  action  for  money  had  and  received.  The 
money  came  into  the  defendant's  hands  in  this  way : 

The  plaintiff  conveyed  a  parcel  of  real  estate  to  one  Hiram  Joy, 
with  covenants  of  warranty,  and  there  being  some  doubt  about  the 
title,  a  creditor  of  the  grantor's  husband  having  levied  upon  it  as 
his  property,  it  was  agreed  that  the  consideration  money  ($1,000) 
should  be  placed  in  the  hands  of  the  defendant,  "to  remain  with 
him  as  collateral  to  said  warranty,  for  a  reasonable  and  satisfactory 
length  of  time."  The  plaintiff  contends  that  the  money  had  re- 
mained in  the  defendant's  hands  a  reasonable  length  of  time,  and 
that  being  reasonable  it  should  be  construed  to  be  satisfactory,  and 
that  she  is  now  entitled  to  recover  it  in  an  action  for  money  had  and 
received  against  the  defendant. 

It  will  be  noticed  that  the  defendant  is  a  mere  depositary  or  trus- 
tee. He  has  no  interest  in  the  money.  He  holds  it  for  the  sole 
benefit  of  others.  It  does  not  appear  that  he  was  authorized  to  de- 
termine how  long  he  should  keep  the  money,  nor  when  it  should  be 
given  up,  nor  to  which  party  it  should  be  given.  Joy,  the  original 
grantee,  is  now  dead,  but  his  widow,  to  whom  he  devised  the  estate, 
is  not  willing  that  the  money  should  be  given  up.  She  says  it  has 
not  been  judicially  determined  that  the  levy  upon  the  property  is 
not  valid,  and  that  there  is  now  the  same  reason  for  having  the 
money  remain  in  the  defendant's  hands  as  there  was  for  placing  it 
there  in  the  first  place.  What,  then,  was  the  defendant  to  do  ?  Was 
it  his  duty  to  surrender  this  deposit  simply  because  the  plaintiff' 
demanded  it,  when  the  party  for  whose  security  it  was  placed  in 
his  hands  forbade  his  doing  so?  We  think  not.  As  before  re- 
marked, it  does  not  appear  that  he  had  any  authority  to  determine 
to  whom  the  money  would  eventually  belong,  or  when  it  should  be 
given  up.  It  was,  therefore,  no  breach  of  duty  on  his  part  to  re- 
fuse to  surrender  it  to  the  plaintiff.  And  without  a  breach  of  duty 
no  action  can  be  maintained  against  him.  This  is  a  self-evident 
proposition,  and  needs  no  authorities  to  support  it. 

We  have  been  urged  to  enter  into  a  consideration  of  the  equities 


648  QUASI-CONTRACT   AND    EQUITY. 

of  the  case  as  between  the  plaintiff  and  the  widow  of  Hiram  Joy, 
and  to  determine  whether  or  not  the  levy  was  valid.  It  is  a  suffi- 
cient answer  to  this  proposition  that  neither  the  widow,  nor  the 
levying  creditor,  nor  those  claiming  under  him  are  parties  to  the 
suit.  It  is,  therefore,  impossible  for  the  court  to  render  a  judg- 
ment which  shall  be  conclusive  upon  their  rights ;  and  any  attempt 
to  do  so  would  be  a  clear  violation  of  the  fundamental  maxims 
upon  which  justice  is  administered.  The  validity  of  the  levy  can 
only  be  determined  in  a  suit  to  which  those  claiming  title  under  it 
are  parties.  The  interest  of  Hiram  Joy's  w-idow  in  the  money 
sought  to  be  recovered  in  this  suit  can  only  be  determined  in  a  suit 
to  which  she  is  a  party.  But  suppose  the  law  v/ere  otherwise,  and 
we  should  enter  into  a  consideration  of  the  rights  of  persons  not 
parties  to  the  suit,  and  should  come  to  the  conclusion  that  as  against 
them  the  plaintiff's  claim  is  the  best,  this  would  not  place  the  de- 
fendant in  the  wrong.  He  could  not  know  in  advance  what  the 
decision  of  the  court  would  be,  and  ought  not  to  be  made  to  pay 
the  penalty  of  a  lawsuit  for  not  knowing. 

The  plaintiff  has  mistaken  her  remedy.  Her  claim,  however  just, 
is  one  which  cannot  be  enforced  in  a  suit  against  the  defendant 
alone.  He  is  a  mere  trustee  holding  the  funds  for  the  security  of 
another,  and  is  not,  therefore,  the  real  party  adversely  interested. 
The  proper  remedy  in  such  cases  is  in  equity,  where  all  the  parties  in 
interest  can  be  made  parties  to  the  record,  and  a  judgment  ren- 
dered that  shall  do  justice  to  all  and  be  obligatory  upon  all.  If,  in  a 
case  like  this,  one  of  the  claimants  could  sue  the  trustee,  so  could  the 
other ;  and  as  neither  would  be  a  party  to  the  other's  suit,  a  recovery 
in  one  would  be  no  bar  to  a  recovery  in  the  other ;  and  in  this  way, 
the  defendant  might,  by  the  verdict  of  different  juries,  be  compelled 
to  pay  double  the  amount  he  received,  with  two  bills  of  costs  added. 
The  law  does  not  tolerate  the  possibility  of  such  a  result. 

Plaintiff'  non-suit. 

Appelton,  C.  J.,  Kent,  Dickerson,  Barrows,  Danforth  and 
Tapley,  JJ.,  concurred. 


ROBERTS  V.  ELY  et  al,  Ex'rs. 

113  N.  Y.  128.— 1889. 

The  complaint  in  this  action  alleged,  in  substance,  that  one 
Geiger,  and  plaintiff,  composing  the  firm  of  Geiger  &  Co.,  pur- 
chased, in  April,  1871,  of  David  J.  Ely,  defendants'  testator,  a  quan- 
tity of  teas,  then  in  the  custody  of  the  Chicago  &  China  Tea  Com- 
pany ;  that  it  was  agreed  between  the  purchasers  and  that  company 
that  it  should  hold  the  teas  in  store  and  insure  the  same  for  their 
benefit,  which  it  did,  together  with  other  teas  belonging  to  Ely ; 
that  the  teas  so  insured  were  destroyed  by  fire  and  the  insurance 


QUASI-CONTRACT   AND   EQUITY.  649 

money  for  the  whole  collected  and  received  by  Ely  in  November, 
1872,  who  wrongfully  appropriated  the  whole  thereof  and  paid  no 
portion  to  Geiger  or  defendant,  and  refused  to  pay  over  or  account 
for  the  same ;  that  Geiger  assigned  all  his  interest  in  the  claim  to 
plaintiff.  The  relief  demanded  was  that  the  defendants  account  for 
and  pay  over  to  plaintiff  all  moneys  received  by  reason  of  the 
destruction  of  the  teas  belonging  to  Geiger  &  Co. 

Andrews,  J. — *  *  *  '''  The  case  falls  within  the  familiar 
doctrine  that  money  in  the  hands  of  one  person  to  which  another 
is  equitably  entitled,  may  be  recovered  in  a  common-law  action  by 
the  equitable  owner,  upon  an  implied  promise  arising  from  the 
duty  of  the  person  in  possession  to  account  for  and  pay  over  the 
same  to  the  person  beneficially  entitled.  The  action  for  money  had 
and  received  to  the  use  of  another  is  the  form  in  which  courts  of 
common  law  enforce  the  equitable  obligation.  The  scope  of  this 
remedy  has  been  gradually  extended  to  embrace  many  cases  wdiich 
were  originally  cognizable  only  in  courts  of  equity.  Whenever 
one  person  has  in  his  possession  money  which  he  cannot  conscien- 
tiously retain  from  another,  the  latter  may  recover  it  in  this  form 
of  action,  subject  to  the  restriction  that  the  mode  of  trial  and  the 
relief  which  can  be  given  in  a  legal  action  are  adapted  to  the 
exigencies  of  the  particular  case,  and  that  the  transaction  is  cap- 
able of  adjustment  by  that  procedure  without  prejudice  to  the 
interest  of  third  persons.  No  privity  of  contract  between  the  par- 
ties is  required,  except  that  which  results  from  the  circumstances. 
(Mason  v.  Waite,  17  Mass.  560.)  The  right  on  the  one  side,  and 
the  correlative  duty  on  the  other,  create  the  necessary  privity  and 
justify  the  implication  of  a  promise  by  the  defendant  to  do  that 
which  justice  and  equity  require.  It  is  immaterial,  also,  whether 
the  original  possession  of  the  money  by  the  defendant  was  rightful 
or  wrongful.  It  is  sufficient  that  the  duty  exists  on  his  part, 
created  by  the  circumstances,  to  account  for  and  pay  it  over  to  the 
plaintiff. 

Nor  is  this  form  of  action  excluded  because,  in  a  general  sense, 
there  is  a  relation  of  trust  between  the  parties  arising  out  of  the 
transaction.  There  are  many  cases  of  trust  cognizable  only  in  a 
court  of  equity.  The  cases  of  express  trusts  of  property  are  gener- 
ally of  this  kind.  The  duty  of  the  trustee  to  the  cestui  que  trust, 
to  perform  the  trust  and  to  account  according  to  its  terms  and  con- 
ditions, is  as  a  general  rule  enforcable  only  in  an  equitable  action. 
The  necessity  of  taking  an  account,  the  frequent  complexity  of 
details,  the  separate  and  varied  interests  often  affected,  and  the 
necessity  of  moulding  the  relief  to  suit  the  circumstances,  render 
the  procedure  of  courts  of  equity  peculiarly  suitable  in  the  admin- 
istration of  formal  trusts,  and  in  many  cases  indispensable  to  the 
ascertainment  and  enforcement  of  the  rights  and  obligations  of  the 
parties.  But  the  fact  that  money  in  the  hands  of  one  person  is 
impressed  with  a  trust  in  favor  of  another,  or  that  the  relation 
between  them  has  a  trust  character,  does  not,  ipso  facto,  exclude. 


650  QUASI-CONTRACT    AND    EQUITY. 

the  jurisdiction  of  courts  of  law.  The  general  rule  that  trusts  are 
cognizable  in  equity  and  are  enforceable  only  in  an  equitable  action, 
is  subject  to  many  exceptions,  "as,  for  instance,  cases  of  bailments, 
and  that  larger  class  of  cases  where  the  action  for  money  had  and 
received  for  another's  use  is  maintained  ex  aequo  et  bono."  (Story's 
Eq.  Jur.  sec.  60;  Comstock,  J.,  Lawrence  v.  Fox,  20  N.  Y.  278.) 

The  present  case  falls  within  the  exception.  Upon  the  plaintiff's 
theory  of  the  facts,  Geiger  &  Co.  were  the  equitable  owners  of  a 
pro  rata  part  of  the  insurance  money  received  by  Ely.  That  firm 
and  Ely  were  alone  interested  in  the  question,  as  it  is  conceded 
that  Ely  was  entitled  to  all  the  money  received,  subject  only  to  the 
claim  of  Geiger  &  Co.  The  only  accounting  required  was  such 
as  was  necessary  to  ascertain  the  extent  of  the  interest  of  Geiger 
&  Co.,  and  that  depended  upon  simple  facts  as  readily  ascertainable 
in  a  legal  as  in  an  equitable  action.  The  case,  therefore,  pre- 
sented a  cause  of  action  upon  a  liability  implied  by  law,  and  it 
was  subject  to  the  limitation  of  six  years  prescribed  by  section  91 
of  the  Code  of  Procedure,  in  force  when  the  cause  of  action  arose. 
The  money  was  paid  to  Ely  in  187 1,  and  the  facts  were  known  to 
Ceiger  &  Co.  at  or  soon  after  that  date.  The  action  was  com- 
menced in  1881.  Assuming  that  an  equitable  action  could  be 
brought  to  enforce  the  liability  claimed,  it  would  still  be  subject 
to  the  limitation  of  six  years.  (Matter  of  Neilley,  95  N.  Y.  390.) 
The  plaintiff  cannot  avoid  the  application  of  the  statute  by  treating 
the  actual  appropriation  of  the  money  by  Ely  in  1874  as  the  cause 
of  action.  The  right  of  Geiger  &  Co.  to  recover  was  perfect  from 
the  time  of  its  actual  receipt  bv  Ely  in  1871.     (Lillie  v.  Hoyt,  5 

Hill  395-) 

The  judgment  should  be  affirmed.^ 
All  concur. 

^  See  also  the  discussion  in  Chapman  v.  Forbes,  123  N.  Y.  532  (1890), 
where  it  was  held  that  although  the  action  at  law  for  money  had  and 
received  is  equitable  in  its  nature,  yet  it  is  not  within  the  contemplation  of  the 
Code  of  Civil  Procedure,  §  452,  embodying  the  equity  rule  as  to  bringing 
in  other  parties  when  it  is  necessary  for  a  complete  determination  of  the 
controversy. 

In  Wright  v.  Butler,  6  Wend.  284  (1830),  the  court  says  (p.  290)  :_  "These 
actions  on  the  money  counts  are  resorted  to  as  substitutes  for  bills  in  chan- 
cery, and  ought  to  be  encouraged  whenever  the  law  affords  no  other  remedy, 
and  where  a  court  of  equity  would  compel  the  defendant  to  repay  to  the 
plaintiff  a  sum  of  money  which  the  latter  had  been  compelled  to  pay  for  his 
benefit." 


QUASI-CONTRACT   AND    EQUITY.  C5I 

MINCHIN  V.  MINCHIN. 

157  Mass.  265. — 1892. 

Contract,  for  money  had  and  received.  Verdict  for  the  plain- 
tiff. 

Field,  C.  J. — *  *  *  *  The  written  paper  was  under  seal  and 
was  signed  by  the  plaintiff,  and  it  purports  to  convey  the  money 
sued  for,  absolutely  to  John  Minchin,  who  was  the  defendant,  and 
the  executrix  of  whose  will  defends  the  suit,  he  having  died.  The 
conveyance  contains  full  covenants  like  those  contained  in  a  war- 
ranty deed  of  land,  and  is  "in  consideration  of  five  dollars  (and 
love  and  affection)  to  me  paid  by  John  Minchin,"  etc.  The  evi- 
dence admitted  against  the  defendant's  objection  consisted  of  oral 
evidence  tending  to  prove  that  the  money  was  delivered  to  John 
Minchin,  and  showing  the  circumstances  under  which  it  was  de- 
livered and  the  paper  signed,  and  of  conversations  with  John  Min- 
chin, or  of  statements  made  by  him  afterwards,  to  the  effect  that 
the  money  was  held  by  him  as  the  property  of  the  plaintiff  and  for 
his  benefit. 

Under  the  rulings  and  instructions  of  the  presiding  justice  the 
principal  question  is  whether,  in  an  action  at  law  to  recover  the 
money,  it  is  competent  to  show  by  oral  evidence  that  the  money 
was  conveyed  to  John  Minchin  in  trust,  to  keep  it  and  to  pay  it  over 
to  the  plaintiff  on  demand.  The  action  is.  in  substance,  an  action 
for  money  had  and  received  to  the  plaintiff's  use.  It  is  settled  that 
an  express  trust  in  personal  property  may  be  created  orally,  and 
may  be  proved  by  oral  testimony.  Sturtevant  v.  Jaques,  14  Allen, 
523;  Childs  v.  Jordan,  106  Mass.  321;  Thacher  v.  Churchill,  118 
Mass.  108;  Davis  v.  Coburn,  128  Mass.  377;  Chace  v.  Chapin,  130 
Mass.  128;  Chase  v.  Perley,  148  Mass.  289. 

We  do  not  deem  it  necessary  to  consider  the  cases  which  hold 
that  a  formal  conveyance  like  this  in  an  action  at  law  cannot  be 
shown  by  oral  testimony  to  have  been  intended  as  a  mortgage  or 
as  collateral  security,  or  as  anything  else  than  an  absolute  convey- 
ance, on  the  ground  that  such  evidence  contradicts  the  writing. 
Some  of  these  cases  are  cited  in  Reeve  v.  Dennett,  137  Mass.  315. 
In  general  they  are  actions  which  concern  the  legal  title.  In  equity 
it  has  been  held  that  an  absolute  deed  of  land  may  be  shown  to  be 
a  mortgage  by  oral  testimony,  Campbell  v.  Dearborn,  109  Mass. 
130,  and  in  equity  an  absolute  conveyance  of  personal  property  may 
be  shown  by  oral  testimony  to  have  been  made  in  trust  for  the 
grantor  or  for  other  persons.  Davis  v.  Coburn,  and  other  cases 
cited.  See  Hess'  appeal,  T12  Penn.  St.  168;  Calder  v.  Moran,  49 
Mich.  14;  Edinger  v.  Heiser,  62  Mich.  598:  Mohn  v.  Alohn,  112 
Ind.  285;  Thomas  v.  Merry,  113  Ind.  83;  Barry  v.  Lambert,  98 
N.  Y.  300;  Danser  v.  Warwick,  6  Stew.  133;  Twomey  v.  Crowley, 
137  Mass.  184 ;  i  Perry  on  Trusts,  sec.  86 ;  Pom.  Eq.  Jur.  sec.  1008. 


652  QUASI-CONTRACT   AND    EQUITY. 

Such  a  trust  usually  can  be  enforced  only  in  equity,  but  when  the 
trust  is  to  pay  over  money  to  the  plaintiff  on  demand,  and  nothing 
else  remains  to  be  done,  an  action  at  law  can  be  maintained.  Chase 
V.  Perley,  ubi  supra.  Such  an  action  is  of  an  equitable  character, 
and  it  proceeds  on  the  ground  that  the  legal  title  is  in  the  defend- 
ant, but  that  in  equity  and  good  conscience  he  should  hand  over 
the  property  to  the  plaintiff.  We  see  no  reason  why  in  such  an 
action  brought  to  enforce  such  a  trust  the  rules  of  equity  regarding 
the  admission  of  evidence  should  not  prevail.  lii  the  view  of 
equity  the  evidence  does  not  contradict  the  writing,  but  tends  to 
establish  an  equitable  title  consistent  with  the  legal  title  which  was 
conveyed  to  the  defendant  by  the  writing  and  by  the  delivery.  In 
a  grant  of  land  with  full  covenants,  but  in  trust  for  the  grantor, 
whether  the  trust  is  declared  in  the  deed  of  grant,  or  in  a  writing 
signed  by  the  grantee,  the  trust  is  not  regarded  as  inconsistent  with 
the  grant  or  with  the  covenants,  and  when  the  statute  of  frauds 
does  not  require  the  trust  to  be  created  or  proved  by  a  written 
instrument,  the  oral  declaration  of  such  a  trust  is  not  in  equity 
regarded  as  inconsistent  with  a  similar  grant  of  personal  property. 
If  any  of  the  evidence  admitted  related  to  conversations  had  before 
the  writing  was  signed,  the  objection  to  its  admission  does  not 
appear  to  have  been  taken  on  that  ground,  and,  so  far  as  has  been 
pointed  out,  the  conversations  may  be  considered  as  showing  only 
the  circumstances  under  which  the  written  conveyance  was  signed. 

Exceptions  overruled.^ 

*But  see  Boyce  v.  Wilson,  ante,  p.  354. 


APPENDIX. 


THE  HISTORY  OF  ASSUMPSIT.* 

BY   JAMES   BARR   AMES. 
(Reprinted  from  the  Harvard  Law  Revieiv,  by  permission.) 


I.     Express  Assumpsit. 

The  mystery  of  consideration  has  possessed  a  peculiar  fascina- 
tion for  writers  upon  the  EngHsh  Law  of  Contract.  No  fewer 
than  three  distinct  theories  of  its  origin  have  been  put  forward 
within  the  last  eight  years.  According  to  one  view,  "the  require- 
ments of  consideration  in  all  parol  contracts  is  simply  a  modified 
generalization  of  quid  pro  quo  to  raise  a  debt  by  parol."-  On  the 
other  hand,  consideration  is  described  as  "a  modification  of  the 
Roman  principle  of  causa,  adopted  by  equity  and  transferred  thence 
into  the  common  law."^  A  third  learned  writer  derives  the  action 
of  assumpsit  from  the  action  on  the  case  for  deceit,  the  damage  to 
the  plaintifif  in  that  action  being  the  forerunner  of  the  "detriment 
to  the  promisee,"  which  constitutes  the  consideration  of  all  parol 
contracts.'* 

To  the  present  writer^  it  seems  impossible  to  refer  consideration 
to  a  single  source.  At  the  present  day  it  is  doubtless  just  and  ex- 
pedient to  resolve  every  consideration  into  a  detriment  to  the  prom- 

*  This  History  of  Assumpsit  was  first  published  in  1888,  in  vol.  2  of  the 
Harvard  Law  Review;  and,  in  igoo,  was  reprinted  in  England,  by  permission, 
in  Vol.  25  of  the  Fifth  Scries  of  the  Law  Maga::!iie  and  Rcz'iczc.  The  present 
republication  is  by  the  courtesy  of  Professor  Ames,  and  of  the  editors  of  the 
Harvard  Law  Review.  The  few  notes  added  by  the  author  before  the  reprint 
in  the  Lazv  Magazine  and  Revieiv  are  included  here. 

"  Holmes,  Early  English  Equity,  i  L.  Q.  Rev.  171 ;  The  Common  Law, 
285.  A  similar  opinion  had  been  previously  advanced  by  Professor  Langdell, 
Contracts,  §  47. 

^  Salmond,  History  of  Contract.  3  L-  Q-  Rev.  166,  178. 

*  Hare,  Contracts,  Ch.  Vn.  and  Vni. 

^  It  seems  proper  to  say  that  the  substance  of  this  article  was  in  manu- 
script before  the  appearance  of  Judge  Hare's  book  or  Mr.  Salmond's  essay. 

653 


654  APPENDIX. 

isee  incurred  at  the  request  of  the  promisor.  But  this  definition  of 
consideration  would  not  have  covered  the  cases  of  the  sixteenth  cen- 
tury. There  were  then  two  distinct  forms  of  consideration:  (i) 
detriment;  (2)  a  precedent  debt.  Of  these,  detriment  was  the 
more  ancient,  having  become  estabHshed,  in  substance,  as  early  as 
1504.  On  the  other  hand,  no  case  has  been  found  recognizing  the 
validity  of  a  promise  to  pay  a  precedent  debt  before  1542.  These 
two  species  of  consideration,  so  different  in  their  nature,  are,  as 
would  be  surmised,  of  distinct  origin.  The  history  of  detriment 
is  bound  up  with  the  history  of  special  assumpsit,  whereas  the  con- 
sideration based  upon  a  precedent  debt  must  be  studied  in  the  de- 
velopment of  indebitatus  assumpsit.  These  two  forms  of  assumpsit 
will,  therefore,  be  treated  separately  in  the  following  pages. 

The  earliest  cases  in  which  an  assumpsit  was  laid  in  the  declara- 
tion were  cases  against  a  ferryman  who  undertook  to  carry  the 
plaintiff's  horse  over  the  river,  but  who  overloaded  the  boat,  where- 
by the  horse  was  drowned  ;^  against  surgeons  who  undertook  to 
cure  the  plaintiff  or  his  animals,  but  who  administered  contrary 
medicines  or  otherwise  unskillfully  treated  their  patient ;-  against 
a  smith  for  laming  a  horse  while  shoeing  it  ;^  against  a  barber  who 
undertook  to  shave  the  beard  of  the  plaintiff  with  a  clean  and 
wholesome  razor,  but  who  performed  his  work  negligently  and 
unskillfully,  to  the  great  injury  of  the  plaintift"'s  face  \*  against  a 
carpenter  who  undertook  to  build  well  and  faithfully,  but  who  built 
unskillfully.^ 

In  all  these  cases,  it  will  be  observed,  the  plaintiff"  sought  to 
recover  damages  for  a  physical  injury  to  his  person  or  property, 
caused  by  the  active  misconduct  of  the  defendant.  The  statement 
of  the  assumpsit  of  the  detendant  was  for  centuries,  it  is  true, 
deemed  essential  in  the  count.  But  the  actions  were  not  originally, 
and  are  not  to-day,  regarded  as  actions  of  contract.  They  have 
always  sounded  in  tort.  Consideration  has,  accordingly,  never 
played  any  part  in  the  declaration.  In  the  great  majority  of  the  cases 
and  precedents  there  is  no  mention  of  reward  or  consideration.  In 
Powtuary  v.  Walton*'  (1598),  a  case  against  a  farrier  who  under- 
took to  cure  the  plaintiff's  horse,  and  who  treated  it  so  negligently 
and  unskillfully  that  it  died,  it  is  said:  "Action  on  the  case  lies  on 
this  matter  without  alleging  any  consideration,  for  his  negligence 

'  Y.  B.  22  Ass.  94,  pi.  41. 

'Y.  B.  43  Ed.  III.  6,  pi.  11;  II  R.  II.  Fitz.  Ab.  Act.  on  the  case,  37;  Y.  B. 
3  H.  VI.  ?,6,  pi.  33;  Y.  B.  19  H.  VI.  49,  pL  5:  Y.  B.  11  Ed.  IV.  6,  pi.  10; 
"Powtuary  v.  Walton,  i  Roll.  Ab.  10  pi.  5;  Slater  v.  Baker,  2  Wils.  359; 
Sears  v.  Prentice,  8  East  348. 

'  Y.  B.  46  Ed.  III.  19,  pi.  19;  Y.  B.  12  Ed.  IV.  13,  pi.  9  (semble). 

*  14  H.  VIT.  Rast.  Ent.  2,  b.  1. 

'  Y.  B.  II  IT.  IV.  33,  pi.  60;  Y.  B.  3  H.  VI.  36.  pi.  33 :  Y.  B.  20  H.  VI.  34,  pl- 
4;  Y.  B.  21  H.  VI.  55,  pl.  12;  iR  H.  VII.  Keilw.  50,  pl.  4;  21  H.  VIT.  Keilw.  77, 
pl.  25;  Y.  B.  21  H.  VII.  41,  pl.  66;  Coffgs  v.  Bernard.  2  Ld.  Ray.  909,  920; 
Elsee  V.  Galward,  5  T.  R.   143.     See  also  Best  v.  Yates,   i   Vent.  268. 

*  I  Roll.  Ab.  10,  pl.  5.     See  also  to  the  same  effect,  Reg.  Br.  105  b. 


HISTORY    OF    ASSUMPSIT.  655 

is  the  cause  of  the  action,  and  not  the  assninpsit.  The  gist  of  the 
action  being  tort,  and  not  contract,  a  servant,*  a  wife,-  or  a  child," 
who  is  injured,  may  sue  a  defendant  who  was  employed  by  the 
master,  the  husband,  or  the  father.  Wherever  the  employment  was 
not  gratuitous,  and  the  employer  was  himself  the  party  injured,  it 
would,  of  course,  be  a  simple  matter  to  frame  a  good  count  in  con- 
tract. There  is  a  precedent  of  assiunpsit  against  a  farrier  for  lam- 
ing the  plaintiff's  horse.*  But  in  practice  assimipsit  was  rarely,  if 
ever,  resorted  to. 

What,  then,  was  the  significance  of  the  assunipsit  which  appears 
in  all  the  cases  and  precedents,  except  those  against  a  smith  for 
unskillful  shoeing?  To  answer  this  question  it  is  necessary  to  take 
into  account  a  radical  difference  between  modern  and  primitive 
conceptions  of  legal  liability.  The  original  notion  of  a  tort  to  one's 
person  or  property  was  an  injury  caused  by  an  act  of  a  stranger,  in 
which  the  plaintiff  did  not  in  any  way  participate.  A  battery,  an 
asportation  of  a  chattel,  an  entry  upon  land,  were  the  typical  torts. 
If,  on  the  other  hand,  one  saw  fit  to  authorize  another  to  come  into 
contact  with  his  person  or  property,  and  damage  ensued,  there  was, 
without  more,  no  tort.  The  person  injured  took  the  risk  of  all 
injurious  consequences,  unless  the  other  expressly  assumed  the  risk 
himself,  or  unless  the  peculiar  nature  of  one's  calling,  as  in  the  case 
of  the  smith,  imposed  a  customary  duty  to  act  with  reasonable 
skill.  This  conception  is  well  shown  by  the  remarks  of  the  judges 
in  a  case  against  a  horse  doctor.^  Newton,  C.  J. :  "Perhaps  he 
applied  his  medicines  de  son  boii  gre,  and  afterwards  your  horse 
died ;  now,  since  he  did  it  de  son  bon  gre,  you  shall  not  have  an 
action.  *  *  *  My  horse  is  ill,  and  I  come  to  a  horse  doctor 
for  advice,  and  he  tells  me  that  one  of  his  horses  had  a  similar 
trouble,  and  that  he  applied  a  certain  medicine,  and  that  he  will  do 
the  same  for  my  horse,  and  does  so,  and  the  horse  dies ;  shall  the 
plaintiff  have  an  action  ?  I  say.  No."  Paston,  J. :  "You  have  not 
shown  that  he  is  a  common  surgeon  to  cure  such  horses,  and  so, 
although  he  killed  your  horse  by  his  medicines,  you  shall  have  no 
action  against  him  without  an  assumpsit/'  Newton,  C.J. :  "If 
I  have  a  sore  on  my  hand,  and  he  applies  a  medicine  to  my  heel,  by 
which  negligence  my  hand  is  maimed,  still  I  shall  not  have  an  action 
unless  he  undertook  to  cure  me."  The  court  accordingly  decided, 
that  a  traverse  of  the  assunipsit  made  a  good  issue.** 

It  is  believed  that  the  view  here  suggested  will  explain  the  fol- 
lowing passage  in  Blackstone,  which  has  puzzled  many  of  his  read- 
ers :    "If  a  smith's  servant  lames  a  horse  while  he  is  shoeing  him, 

^  Everard  v.  Hopkins,  2  Bulst.  332. 
'  Pippin  V.   Sheppard,   1 1   Price,  400. 
'Gladwell  v.   Steggall,  5  B.  N.  C.  733. 
*2   Chitty,    PI.    (7   ed.)    458. 
■*  Y.  B.  19  H.  VI.  49,  pl.  S. 

"See  to  the  same  effect  Y.  B.  48  Ed.  III.  6,  pl.  11;  11  R.  II.  Fitz.  Ab. 
Act.  on  Case,  37;  Rast.  Ent.  463  b. 


656  APPENDIX- 

an  action  lies  against  the  master,  but  not  against  the  servant."^ 
This  is,  of  course,  not  law  to-day,  and  probably  had  ceased  to  be  law 
when  written.  Blackstone  simply  repeated  the  doctrine  of  the  Year 
Books.-  The  servant  had  not  expressly  assumed  to  shoe  carefully ; 
he  was,  therefore,  no  more  liable  than  the  surgeon,  the  barber,  and 
the  carpenter,  who  had  not  undertaken,  in  the  cases  already  men- 
tioned. This  primitive  notion  of  legal  liability  has,  of  course,  en- 
tirely disappeared  from  the  law.  An  assumpsit  is  no  longer  an 
essential  allegation  in  these  actions  of  tort,  and  there  is,  therefore, 
little  or  no  semblance  of  analogy  between  these  actions  and  actions 
of  contract. 

An  express  assumpsit  was  originally  an  essential  part  of  the  plain- 
tiff's case  in  another  class  of  actions,  namely,  actions  on  the  case 
against  bailees  for  negligence  in  the  custody  of  the  things  intrusted 
to  them.  This  form  of  the  action  on  the  case  originated  later  than 
the  actions  for  active  misconduct,  which  have  been  already  consid- 
ered, but  antedates,  by  some  fifty  years,  the  action  of  assumpsit.  The 
normal  remedy  against  a  bailee  was  detinue.  But  there  were  strong 
reasons  for  the  introduction  of  a  concurrent  remedy  by  an  action  on 
the  case.  The  plaintiff  in  detinue  might  be  defeated  by  the  defend- 
ant's wager  of  law ;  if  he  had  paid  in  advance  for  the  safe  custody 
of  his  property,  he  could  not  recover  in  detinue  his  money,  but  only 
the  value  of  the  property ;  detinue  could  not  be  brought  in  the  King's 
Bench  by  original  writ ;  and  the  procedure  generally  was  less  satis- 
factory than  that  in  case.  It  is  not  surprising,  therefore,  that  the 
courts  permitted  bailors  to  sue  in  case.  The  innovation  would  seem 
to  have  come  in  as  early  as  1449.^  The  plaintiff  counted  that  he 
delivered  to  the  defendant  nine  sacks  of  wool  to  keep ;  that  the  de- 
fendant, for  six  shillings  paid  him  by  the  plaintiff,  assumed  to  keep 
them  safely,  and  that  for  default  of  keeping  they  were  taken  and 
carried  away.  It  was  objected  that  detinue,  and  not  case,  was  the 
remedy.  One  of  the  judges  was  of  that  opinion,  but  in  the  end  the 
defendant  abandoned  his  objection;  and  Statham  adds  this  note: 
*  *  =^=  "ct  credo  the  reason  of  the  action  lying  is  because  the 
defendant  had  six  shillings  which  he  [plaintiff]  could  not  recover 
in  detinue."  The  bailor's  right  to  sue  in  case  instead  of  detinue 
was  recognized  by  implication  in  1472,*  and  was  expressly  stated  a 
few  years  later. •'"' 

The  action  against  a  bailee  for  negligent  custody  was  looked 
upon  like  the  action  against  the  surgeon  or  carpenter  for  active 
misconduct,  as  a  tort,  and  not  as  a  contract.  The  immediate  cause 
of  the  injury  in  the  case  of  the  bailee  was,  it  is  true,  a  nonfeas- 
ance, and  not,  as  in  the  case  of  the  surgeon  or  carpenter,  a  mis- 

^  I  Rl.  Com.  431. 

'  Y.  B.  II  Ed.  IV.  6,  pi.  10;  I  Roll.  Ab.  94,  pi.  i  ;i  Roll.  Ab.  95,  pi.  i. 
'Statham  Ab.  Act.  on  Case  (27  H.  VI.). 
*Y.  B.  12  Ed.  IV.  13,  pl.  10. 

°Y.  P..  2  H.  VII.  II,  pl.  9;  Keilw.  77,  pl-  25;  Kcilw.  160,  pl.  2;  Y.  B.  27 
II.  VIII.  25,  pi.  3. 


HISTORY    OF    ASSUMPSIT.  657 

feasance.  And  yet,  if  regard  be  had  to  the  whole  transaction,  it  is 
seen  that  there  is  more  than  a  simple  breach  of  promise  by  the 
bailee.  He  is  truly  an  actor.  He  takes  the  goods  of  the  bailor  into 
his  custody.  This  act  of  taking  possession  of  the  goods,  his  a^- 
sumpsit  to  keep  them  safely,  and  their  subsequent  loss  by  his  de- 
fault, together  made  up  the  tort.  The  action  against  the  bailee 
sounding  in  tort,  consideration  was  no  more  an  essential  part  of 
the  count  than  it  was  in  actions  against  a  surgeon.  Early  in 
the  reign  of  Henry  VHL,  Moore,  Sergeant,  said,  without  con- 
tradiction, that  a  bailee,  with  or  without  reward,  was  liable  for 
careless  loss  of  goods  either  in  detinue  or  case  ;^  and  it  is  common 
learning  that  a  gratuitous  bailee  was  charged  for  negligence  in  the 
celebrated  case  of  Coggs  v.  Bernard.  If  there  was,  in  truth,  a 
consideration  for  the  bailee's  undertaking,  the  bailor  might,  of 
course,  declare  in  contract,  after  special  assumpsit  was  an  estab- 
lished form  of  action.  But,  in  fact,  there  are  few  instances  of  such 
declarations  before  the  reign  of  Charles  I.-  Even  since  that  time, 
indeed,  case  has  continued  to  be  a  frequent,  if  not  the  more  fre- 
quent, mode  of  declaring  against  a  bailee.^  Oddly  enough,  the 
earliest  attempts  to  charge  bailees  in  assumpsit  were  made  when  the 
bailment  was  gratuitous.  These  attempts,  just  before  and  after 
1600,  were  unsuccessful,  because  the  plaintiffs  could  not  make  out 
any  consideration.^  The  gratuitous  bailment  was,  of  course,  not  a 
benefit,  but  a  burden  to  the  defendant,  and,  on  the  other  hand,  it 
was  not  regarded  as  a  detriment,  but  an  advantage  to  the  plaintiff. 
But  in  1623  it  was  finally  decided,  not  without  a  great  straining, 
it  must  be  conceded,  of  the  doctrine  of  consideration,  that  a  bailee 
might  be  charged  in  assumpsit  on  a  gratuitous  bailment.^ 

The  analogy  between  the  action  against  the  bailee  and  that  against 
the  surgeon  holds  also  in  regard  to  the  necessity  of  alleging  an 
express  assumpsit  of  the  defendant.  Bailees,  whose  calling  w'as  of 
a  quasi  public  nature,  were  chargeable  by  the  custom  of  the  realm, 
without  any  express  undertaking.  Accordingly,  so  far  as  the  re- 
ported cases  and  precedents  disclose,  an  assumpsit  was  never  laid 

^Keilw.  160,  pi.  2  (1510). 

"As  late  as  1745  it  was  objected  in  Alcorn  v.  Westbrook,  i  Wils.  115,  that 
assumpsit  was  not  the  proper  form  of  action  against  a  pledgee. 

^  In  Williams  v.  Lloyd,  W.  Jones,  179;  Anon..  Comb.  371 ;  Coggs  v.  Bernard, 
2  Ld.  Ray.  909;  Shelton  v.  Osborne,  i  Barnard,  260;  i  Selw.  N.  P.  (13  ed.) 
348,  s.  c ;  Brown  v.  Dixon,  i  T.  R.  274,  the  declarations  were  framed  in 
tort. 

*Howlet  V.  Osborne,  Cro.  El.  380;  Riches  v.  Briggs,  Cro.  El.  883,  Yelv.  4; 
Game  v.  Harvie,  Yelv.  50;  Pickas  v.  Guile,  Yelv.  128.  See.  also,  Gellye 
V.  Clark.  Noy,  126,  Cro.  Jac.  188,  s.  c. ;  and  compare  Smith's  case,  3  Leon.  88. 

''Wheatley  v.  Low,  Palm.  281,  Cro.  Jac.  668,  s.  c. 

Woodruff's  Cases— 42 


658  APPENDIX. 

in  a  count  in  case  against  a  common  carrier,^  or  innkeeper,^  foi 
the  loss  of  goods.  They  correspond  to  the  smith,  who,  from  the 
nature  of  his  trade,  was  bound  to  shoe  skilfully.  But,  in  order  to 
charge  other  bailees,  proof  of  an  express  assumpsit  was  originally 
indispensable.  An  assumpsit  was  accordingly  laid  as  a  matter  of 
course,  in  the  early  cases  and  precedents.  Frowyk,  C.  J.,  says,  in 
1505,  that  the  bailee  shall  be  charged  "per  cest  parol  super  se  as- 
sumpsit."^ In  Fooley  v.  Preston,*  Anderson,  Chief  Justice  of  the 
Common  Bench,  mentions,  it  is  true,  as  a  peculiarity  of  the  Queen's 
Bench,  that  "it  is  usual  and  frequent  in  B.  R.  if  I  deliver  to  you 
an  obligation  to  rebail  unto  me,  I  shall  have  an  action  upon  the  case 
without  an  express  promise."  And  yet,  twelve  years  later,  in  Mos- 
ley  V.  Fossef^  (1598),  which  was  an  action  on  the  case  for  the 
loss  of  a  gelding  delivered  to  the  defendant  to  be  safely  kept  and 
redelivered  on  request,  the  four  judges  of  the  Queen's  Bench,  al- 
though equally  divided  on  the  question  whether  the  action  would  lie 
without  a  request,  which  w^ould  have  been  necessary  in  an  action  of 
detinue,  "all  agreed  that  without  such  an  assumpsit  the  action  would 
not  lie."^    But  with  the  lapse  of  time  an  express  undertaking  of 

^i  Roll.  Ab.  2,  pi.  4;  Rich  V.  Kneelan,  Hob.  17;  i  Roll.  Ab.  6,  pi.  4;  Kenrig 
v.  Eggleston,  Al.  93;  Nichols  v.  More,  i  Sid.  36;  Morse  v.  Slue,  i  Vent. 
190,  238;  Levett  V.  Hobbs,  2  Show.  127;  Chamberlain  v.  Cooke,  2  Vent.  75; 
Matthews  v.  Hoskins,  i  Sid.  244;  Upshare  v.  Aidee,  Com.  25;  Heme's 
Pleader,  76  Brownl.  Ent.  11;  2  Chitty,  pi.  (i  ed.)  271. 

=  Y.  B.  42  Lib.  Ass,,  pi.  17;  Y.  B.  2  H.  IV.  7.  pl-  31;  Y.  B.  11  H.  IV.  45, 
pi.  18;  Cross  V.  Andrews,  Cro.  El.  622;  Gellye  v.  Clark,  Cro.  Jac.  189; 
Beedle  v.  Norris,  Cro.  Jac.  224;  Heme's  Pleader,  170,  249. 

^  Keil.  77,  pl.  25. 

*  I  Leon.  297. 

°  Moore,  543,  pl.  720;  i  Roll.  Ab.  4,  pl.  5,  s.  c.  The  criticism  in  Holmes' 
"Common  Law,"  155,  n.  1.,  of  the  report  of  this  case  seems  to  be  without 
foundation. 

*  See  also  Evans  v.  Yeoman  (1635),  Clayt.  p.  33;  "Assumpsit.  The  case 
upon  evidence  was,  that  whereas  the  plaintifif  did  deliver  a  book  or  charter 
to  the  defendant,  it  was  holden  that  unless  there  had  been  an  express  prom- 
ise to  redeliver  this  back  again,  this  action  will  not  lie." 

The  writer  is  tempted  to  suggest  here  an  explanation  of  an  anomaly  in  the 
law  of  waste.  If,  by  the  negligence  of  a  tenant-at-will,  a  fire  breaks  out 
and  destroys  the  house  occupied  by  him  as  tenant,  and  another  also  belonging 
to  his  landlord,  he  must  respond  in  damages  to  the  landlord  for  the  loss  of 
the  latter,  but  not  of  the  former.  Lothrop  v.  Thayer,  138  Mass.  466. 
This  is  an  illustration  of  the  rule  that  a  tenant-at-will  is  not  liable  for  neg- 
ligent or  permissive  waste.  Is  it  not  probable  that  the  tenant-at-will  and  a 
bailee  were  originally  regarded  in  the  same  light?  In  other  words,  neither 
was  bound  to  guard  with  care  the  property  entrusted  to  him  in  the  ab- 
sence of  a  special  tmdcrtaking  to  that  effect.  This  primitive  conception 
of  liability  disappeared  in  the  case  of  chattels,  but  persisted  in  the  case  of 
land,  as  a  rule  affecting  real  property  would  naturally  persist.  In  the  Count- 
ess of  Salop  v.  Crompton,  Cro.  El.  yyy,  784,  5  Rep.  13,  s.  c,  a  case  against  a 
tenant-at-will,  Gawdy,  J.,  admits  the  liability  of  a  shepherd  for  the  loss  of 
sheep,  "because  he  there  took  upon  him  the  charge.  But  here,  he  takes  not 
any  charge  upon  him,  but  to  occupy  and  pay  his  rent."  So  also  in  Coggs 
V.  Bernard,  2  Ld.  Ray.  909.  Powell,  J.,  referring  to  the  case  of  the  Countess 
of  .Salop,  says:  "An  action  will  not  lie  against  a  tenant-at-will  generally, 
if  the  house  be  burnt  down.    But  if  the  action  had  been  founded  upon  a  spe- 


HISTORY    OF    ASSUMPSIT.  G59 

the  bailee  ceased  to  be  required,  as  we  have  already  seen  it  was 
dispensed  with  in  the  case  of  a  surgeon  or  carpenter.  The  accept- 
ance of  the  goods  from  the  bailor  created  a  duty  to  take  care  of 
them  in  the  same  manner  that  a  surgeon  who  took  charge  of  a 
patient  became  bound,  without  more,  in  modern  times,  to  treat  him 
with  reasonable  skill. 

Symons  v.  DarknolP  (1629)  was  an  action  on  the  case  against 
a  lighterman,  but  not  a  common  lighterman,  for  the  loss  of  the  plain- 
tiff's goods.  "And,  although  no  promise,  the  court  thought  the 
plaintiff  should  recover."  Hyde,  C.  J.,  adding:  "Delivery  makes 
the  contract."  The  later  precedents  in  case,  accordingly,  omit  the 
assumpsit. ~ 

There  is  much  in  common  between  the  two  classes  of  actions 
on  the  case  already  discussed  and  still  a  third  group  of  actions  on 
the  case,  namely,  actions  of  deceit  against  the  vendor  of  a  chattel 
upon  a  false  warranty.  This  form  of  action,  like  the  others,  is 
ancient,  being  older,  by  more  than  a  century,  than  special  assumpsit. 
The  words  super  se  assumpsit  were  not  used,  it  is  true,  in  a  count 
upon  a  warranty,  but  the  notion  of  undertaking  was  equally  well 
conveyed  by  "zi'arran'ticando  -t'endidit." 

Notwithstanding  the  undertaking,  this  action  also  was,  in  its 
origin,  a  pure  action  of  tort.  In  what  is,  perhaps,  the  earliest  re- 
ported case  upon  a  warranty,"  the  defendant  objects  that  the  action 
is  in  the  nature  of  a  covenant,  and  that  the  plaintiff  shows  no 
specialty  but  "non  allocatur,  for  it  is  a  writ  of  trespass."  There 
was  regularly  no  allusion  to  consideration  in  the  count  in  case ;  if, 
by  chance,  alleged,  it  counted  for  nothing.*  How  remote  the 
action  was  from  an  action  of  contract  appears  plainly  from  a  remark 
of  Choke,  J. :  "If  one  sells  a  thing  to  me,  and  another  warrants  it 
to  be  good  and  sufficient,  upon  that  warranty  made  by  parol,  I 
shall  not  have  an  action  of  deceit ;  but  if  it  was  by  deed,  I  shall  have 
an  action  of  covenant."^  That  is  to  say,  the  parol  contract  of 
guaranty,  so  familiar  in  later  times,  was  then  unknown.  The  same 
judge,  and  Brian,  C.  J.,  agreed,  although  Littleton,  J.,  inclined 
to  the  opposite  view,  that  if  a  servant  warranted  goods  which  he 
sold  for  his  master,  no  action  would  lie  on  the  warranty.  The 
action  sounding  in  tort,  the  plaintiff,  in  order  to  charge  the  defend- 
ant, must  show,  in  addition  to  his  undertaking,  some  act  by  b.im. 
that  is,  a  sale ;  but  the  owner  was  the  seller,  and  not  the  friend 
or  servant,  in  the  cases  supposed.  A  contract,  again,  is,  properly, 
a  promise  to  act  or  forbear  in  the  future.     But  the  action  under 

cial  undertaking,  as  that,  in  consideration  the  lessor  would  let  him  live  in 
the  house,  he  promised  to  deliver  up  the  house  to  him  again  in  as  good  repair 
as  it  was  then,  the  action  would  have  lain  upon  that  special  undertaking. 
But  there  the  action  was  laid  generally." 

^  Palm.  523.     See,  also.  Stanian  v.  Davics,  2  Ld.  Ray.  795. 

*2  Inst.  Cier.  185;  2  Chitty  PI.   (7  ed.)  506,  507. 

'Fitz.  Ab.  Monst.  de  Faits,  pi.  160  (138,3). 

*Moor  V.  Russel.  Skin.  10.4.;  2  Show.  284,  s.  c. 

"Y.  B.  II  Ed.  IV.  6,  pi.  ID. 


66o  APPENDIX. 

discussion  must  be,  as  Choke,  J.,  said,  in  the  same  case,  upon  a 
warranty  of  a  thing  present,  and  not  of  a  thing  to  come.  A  vendor 
who  gives  a  false  warranty  may  be  charged  to-day,  of  course,  in  con- 
tract ;  but  the  conception  of  such  a  warranty,  as  a  contract,  is  quite 
modern.  Stuart  v.  Wilkins,^  decided  in  1778,  is  said  to  have  been 
the  first  instance  of  an  action  of  assumpsit  upon  a  vendor's  war- 
ranty. 

We  have  seen  that  an  express  undertaking  of  the  defendant  was 
originally  essential  to  the  actions  against  surgeons  or  carpenters 
and  bailees.  The  parallel  between  these  actions  and  the  action 
on  a  warranty  holds  true  on  this  point  also.  A  case  in  the  Book  of 
Assizes  is  commonly  cited,  it  is  true,  to  show  that  from  very  early 
times  one  who  sold  goods,  knowing  that  he  had  no  title  to  them, 
was  liable  in  an  action  on  the  case  for  deceit.^  This  may  have  been 
the  law.^  But,  this  possible  exception  apart,  a  vendor  was  not 
answerable  to  the  vendee  for  any  defect  of  title  or  quality  in  the 
chattels  sold,  unless  he  had  either  given  an  express  warranty,  or 
was  under  a  public  duty,  from  the  nature  of  his  calling,  to  sell 
articles  of  a  certain  quality.  A  taverner  or  vintner  was  bound  as 
such  to  sell  wholesome  food  and  drink.*  Their  position  was  analo- 
gous to  that  of  the  smith,  common  carrier  and  innkeeper. 

The  necessity  of  an  express  warranty  of  quality  in  all  other 
cases  is  illustrated  by  the  familiar  case  of  Chandelor  v.  Lopus^ 
(1606-1607).  The  count  alleged  that  the  defendant  sold  to  the 
plaintiff  a  stone,  affirming  it  to  be  a  bezoar  stone,  whereas  it  was 
not  a  bezoar  stone.  The  judgment  of  the  King's  Bench,  that  the 
count  was  bad,  was  affirmed  in  the  Exchequer  Chamber,  all  the 
justices  and  barons  (except  Anderson,  C.  J.)  holding  "that  the 
bare  affirmation  that  it  was  a  bezoar  stone,  without  warranting  it 
to  be  so,  is  no  cause  of  action ;  and  although  he  knew  it  to  be  no 
bezoar  stone,  it  is  not  material ;  for  every  one  in  selling  his  wares 
will  affirm  that  his  wares  are  good,  or  that  his  horse  is  sound ;  yet, 
if  he  does  not  warrant  them  to  be  so,  it  is  no  cause  of  action." 
The  same  doctrine  is  repeated  in  Bailie  v.  Merrill.*'  The  case  of 
Chandelor  v.  Lopus  has  recently  found  an  able  defender  in  the 
pages  of  this  Review.'^  In  the  number  for  November,  1887,  Mr. 
R.  C.  McMurtrie  urges  that  the  decision  was  a  necessary  conse- 
quence of  the  rule  of  pleading,  that  the  pleader  must  state  the  legal 
effect  of  his  evidence,  and  not  the  evidence  itself.  It  is  possible  that 
the  judgment  would  have  been  arrested  in  Chandelor  v.  Lopus,  if 

'3  Doug.  18. 

*3  Y.  B.  42,  Lib.  Ass.  pi.  8. 

'But  see  Kenrick  v.  Burp:es,  Moore  126,  per  Gawdy,  J.,  and  Roswell  v. 
Vaughan,  Cro.  Jac.  196,  per  Tanfield,  C.  B. 

*  Y.  B.  9  H.  VI.  S3,  pl-  .37;  Kcilw.  gi,  pi.  16;  Roswell  v.  Vaughan,  Cro.  Jac. 
196:  Burnby  v.  BollcU,  16  M.  &  W.  644,  654. 

"Dy.  75  a.  n.  (2.3)  ;  Cro.  Jac.  4.     See  also.  8  Harv.  L.  Rev.  282. 

•l  Roll.  R.  275.     See,  also,  Leakins  v.  Clizard,  i  Keb.  522,  per  Jones. 

^  I  Harv.  L.  Rev.  191. 


HISTORY    OF   ASSUMPSIT.  66 1 

it  had  come  before  an  English  court  of  the  present  century.^  But 
it  is  certain  that  the  judges  in  the  time  of  James  I.  did  not  proceed 
upon  this  rule  of  pleading.  To  their  minds  the  word  "warrant,"' 
or,  at  least,  a  word  cciually  importing  an  express  undertaking,  was 
as  essential  in  a  warranty  as  the  words  of  promise  were  in  the  Ro- 
man stipulatio.  The  modern  doctrine  of  implied  warranty,  as 
stated  by  Mr.  Baron  Parke  in  Barr  v.  Gibson,'-  "But  the  bargain 
and  sale  of  a  chattel,  as  being  of  a  particular  description,  does 
imply  a  contract  that  the  article  sold  is  of  that  description,"  would 
have  sounded  as  strangely  in  the  ears  of  the  early  lawyers  as  their 
archaic  doctrine  sounds  in  ours.  The  warranty  of  title  stood 
anciently  upon  the  same  footing  as  the  warranty  of  quality.^  But 
in  Lord  Holt's  time  an  affirmation  was  equivalent  to  a  warranty,* 
and  to-day  a  warranty  of  title  is  commonly  implied  from  the  mere 
fact  of  selling.^ 

However  much  the  actions  against  a  surgeon  or  carpenter  for 
misfeasance,  those  against  a  bailee  for  negligent  custody,  and,  above 
all,  those  against  a  vendor  for  a  false  warranty,  may  have  contrib- 
uted, indirectly,  to  the  introduction  of  special  assumpsit,  there  is  yet 
a  fourth  class  of  cases  which  seem  to  have  been  more  intimately  con- 
nected with  the  development  of  the  modern  parol  contract  than  any 
of  those  yet  considered.  These  cases  were,  also,  like  the  actions  for 
a  false  warranty,  actions  on  the  case  for  deceit.  That  their  signifi- 
cance may  be  fully  appreciated,  however,  it  will  be  well  to  give 
first  a  short  account  of  the  successive  attempts  to  maintain  an  action 
for  the  simple  breach  of  a  naked  parol  promise,  i.  e,,  for  a  pure  non- 
feasance. 

The  earliest  of  these  attempts  was  in  1400,  when  an  action  was 
brought  against  a  carpenter  for  a  breach  of  his  undertaking  to  build 
a  house.  The  court  was  unanimous  against  the  plaintiff,  since  he 
counted  on  a  promise,  and  showed  no  specialty.^  In  the  same  reign 
there  was  a  similar  case,  with  the  same  result.'^  The  harmony  of 
judicial  opinion  was  somewhat  interrupted  fifteen  years  later  in  a 
case  against  a  millwright  on  a  breach  of  promise  to  build  a  mill 
within  a  certain  time.  Martin,  J.,  like  his  predecessors,  was 
against  the  action ;  Cockayne,  J.,  favored  it.  Babington,  C.  J., 
at  first  agreed  wnth  Cockayne,  J.,  but  was  evidently  shaken  by  the 
remark  of  Martin,  J. :  "Truly,  if  this  action  is  maintained,  one 
shall  have  trespass  for  breach  of  any  covenant^  in  the  world,"  for  he 

^  But  see  Crosse  v.  Gardner,  3  Mod.  261,  Comb.  142,  s.  c. ;  Medina  v.  Stough- 
ton,  I  Ld.  Ray.  593,  i  Salk.  210,  s.  c. 
==3  M.  &  W.  390. 
^Co.  Lit.  102a;  Springwell  v.  Allen  (1649)  Al.  91,  2  East,  448,  n.  (a),  s.  c. 

*  Crosse  v.  Gardner,  3  Mod.  261 ;  i  Show.  65,  s.  c. ;  Medina  v.  Stoughton,  i 
Ld.  Ray.  593,  I  Salk.  210,  s.  c. 

^Eichholtz  V.  Bannister,  17  C.  B.  n.  s.  708;  Benj.  Sale  (3d  ed.)  620-631. 

« Y.  B.  2  H.  IV.  3,  pl-  9- 

'Y.  B.  II  H.  IV.  2,3,  pl.  60.     See,  also,  7  H.  VL  i,  pl.  3- 

*  Covenant  was  often  used  in  the  old  books   (for  example,  in  Sharrington 


662  APPENDIX. 

then  said:  "Our  talk  is  idle,  for  they  have  not  demurred  in  judg- 
ment. Plead  and  say  what  you  will,  or  demur,  and  then  it  can  be 
debated  and  disputed  at  leisure."  The  case  went  off  on  another 
point.^  Martin,  ].,  appears  finally  to  have  won  over  the  Chief 
Justice  to  his  view,  for,  eight  years  later,  we  find  Babington, 
C.  J.,  Martin  and  Cotesmore,  JJ.,  agreeing  in  a  dictum  that  no 
action  will  lie  for  the  breach  of  a  parol  promise  to  buy  a  manor. 
Paston,  J.,  showed  an  inclination  to  allow  the  action.-  In  1435  he 
gave  effect  to  this  inclination,  holding,  with  Juyn,  J.,  that  the  de- 
fendant was  liable  in  an  action  on  the  case  for  the  breach  of  a  pa- 
rol promise  to  procure  certain  releases  for  the  plaintiff.''  But  this 
decision  was  ineffectual  to  change  the  law.  Made  without  a  prece- 
dent, it  has  had  no  following.  The  doctrine  laid  down  in  the  time 
of  Henry  IV.  has  been  repeatedly  reaffirmed.* 

The  remaining  actions  on  the  case  for  deceit  before  mentioned 
may  now  be  considered.  In  the  first  of  these  cases  the  writ  is 
given,  and  the  reader  will  notice  the  striking  resemblance  between 
its  phraseology  and  the  later  count  in  assumpsit.  The  defendant 
was  to  answer  for  that  he,  for  a  certain  sum  to  be  paid  to  him  by 
the  plaintiff,  undertook  to  buy  a  manor  of  one  J.  B.  for  the  plaintiff ; 
but  that  he,  by  collusion  between  himself  and  one  M.  N.,  contriving 
cunningly  to  defraud  the  plaintiff,  disclosed  the  latter's  evidence, 
and  falsely  and  fraudulently  became  of  counsel  with  M.  N.,  and 
bought  the  manor  for  M.  N.,  to  the  damage  of  the  plaintiff.     All 

V.  Strotton,  Plow.  298,  passim:  Diversite  of  Courts,  Chancerie)  in  the  sense 
of  agreement,  a  fact  sometimes  overlooked,  as  in  Hare,  Contracts,  138,  139.  _ 
^Y.  B.  3  H.  VI.  36,  pi.  33.  One  of  the  objections  to  the  count  was  that  it 
did  not  disclose  how  much  the  defendant  was  to  have  for  his  work.  The  re- 
marks of  the  judges  and  counsel  upon  this  objection  seem  to  have  been 
generally  misapprehended.  Holmes,  Common  Law  267,  285 ;  Hare,  Contracts 
162.  The  point  was  this ;  debt  would  lie  only  for  a  sum  certain.  H,  then, 
the  price  had  not  been  agreed  upon  for  building  the  mill,  the  millwright,  after 
completing  the  mill,  would  get  nothing  for  his  labor.  It  could  not,  therefore, 
be  right  to  charge  him  in  an  action  for  refusing  to  throw  away  his  time  and 
money.  Babington,  C.  J.,  and  Cockayne,  J.,  admitted  the  force  of  this  argu- 
ment, but  the  latter  thought  it  must  be  intended  that  the  parties  had  deter- 
mined the  price  to  be  paid.  There  is  no  allusion  in  the  case  to  a  qtiid  pro  quo, 
or  a  consideration  as  a  basis  for  the  defendant's  promise.  Indeed,  the  case 
IS  valueless  as  an  authority  upon  the  doctrine  of  consideration. 
''Y.  B.  II  H.  VI.  18,  pi.  10;  24,  pi.  i;  55,  pl-  26. 
'Y.  B.  14  H.  VI.  18,  pl.  q8. 

*Y.  B.  20  H.  VI.  25.  pl.  II,  per  Newton,  C.  J.;  Y.  B.  20  H.  VI.  34,  pl.  4, 
per  Ayscoghe,  T. ;  Y.  B.  21  H.  VI.  5^-12;  Y.  B.  37  H.  VI.  9,  pl-  18,  per  Moyle, 
J.;  Y.  B.  2  H.  VII.  II,  pl.  9,  and  Y.  B.  2  H.  VII.  12,  pl.  15,  per  Townsend,  J.; 
18  H.  VII.  Keilw.  50,  pl.  4,  per  curiam;  Doct.  &  St.  Dial.  11,  c.  24;  Coggs  v. 
Bernard,  2  Ld.  Ray.  909,  919,  per  Lord  Holt;  Elsee  v.  Gatward,  5  T.  R.  143. 
Newton,  C.  J.,  said  on  several  occasions  (Y.  B.  19  H.  VL,  24  b,  pl.  47;  Y. 
B.  20  H.  VI.  34,  pl.  4;  Y.  B.  22  H.  VI.  43,  ph  2^)  as  did  Prisol,  C.  J.,  in  Y. 
B.  37  H.  VI.  "8-t8,  that  one  who  bargained  to  sell  land  for  a  certain  sum  to 
be  "paid  might  have  del)t  for  the  money,  and,  therefore,  on  the  principle  of 
reciprocity,  was  liable  in  an  action  on  the  case  to  his  debtor.  _  But  this  view 
must  be  regarded  as  an  idiosyncrasy  of  these  judges,  for  their  premise  was 
plainly  false.     There  was  no  quid  pro  quo  to  create  a  debt.     See  Y.  B.  20  H. 

VI.  35-4. 


HISTORY    OF    ASSUMPSIT.  663 

the  judges  agreed  that  the  count  was  good.  Babington,  C.  ].: 
"If  he  discovers  his  counsel,  and  becomes  of  counsel  for  another, 
now  that  is  a  deceit,  for  which  I  shall  have  an  action  on  my  case." 
CoTESMORE,  J. :  "I  say,  that  matter  lying  wholly  in  covenant  may 
by  matter  e.v  post  facto  be  converted  into  deceit.  *  *  *  When 
he  becomes  of  counsel  for  another,  that  is  a  deceit,  and  changes 
all  that  was  before  only  covenant,  for  which  deceit  he  shall  have  an 
action  on  his  case."^ 

The  act  of  the  defendant  did  not  afifect,  it  is  true,  the  person  or 
physical  property  of  the  plaintiff.  Still,  it  was  hardly  an  extension 
of  the  familiar  principle  of  misfeasance  to  regard  the  betrayal  of 
the  plaintiff's  secrets  as  a  tortious  invasion  of  his  rights.  But  the 
judges  encountered  a  real  difficulty  in  applying  that  principle  to  a 
case  that  came  before  the  Exchequer  Chamber  a  few  years  later. - 
It  was  a  bill  of  deceit  in  the  King's  Bench,  the  plaintiff  counting 
that  he  bargained  with  the  defendant  to  buy  of  him  certain  land 
for  £100  in  hand  paid,  but  that  the  defendant  had  enfeoffed  another 
of  the  land,  and  so  deceived  him.  The  promise  not  being  binding 
of  itself,  how  could  the  enfeoffment  of  a  stranger  be  a  tortious  in- 
fringement of  any  right  of  the  plaintiff  ?  What  was  the  distinction, 
it  was  urged,  between  this  case  and  those  of  pure  nonfeasance,  in 
which  confessedly  there  was  no  remedy?  So  far  as  the  plaintiff 
was  concerned,  as  Ayscoghe,  J.,  said,  "it  was  all  one  case  whether 
the  defendant  made  a  feoffment  to  a  stranger  or  kept  the  land  in 
his  own  hands."  He  and  Fortescue,  J.,  accordingly  thought  the 
count  bad.  A  majority  of  the  judges,  however,  were  in  favor  of 
the  action.  But  the  case  was  adjourned.  Thirty-five  years  later 
(1476),  the  validity  of  the  action  in  a  similar  case  was  impliedly 
recognized.^  In  1487  Townsend,  J.,  and  Brian,  C.  J.,  agreed  that 
a  traverse  of  the  feoffment  to  the  stranger  was  a  good  traverse, 
since  "that  was  the  effect  of  the  action,  for  otherwise  the  action 
could  not  be  maintained."*  In  the  following  year,^  the  language  of 
Brian,  C.  J.,  is  most  explicit :  "If  there  be  an  accord  between  you 
and  me  that  you  shall  make  me  an  estate  of  certain  land,  and  you 
enfeoff  another,  shall  I  not  have  an  action  on  my  case?  Quasi 
diceret  sic.  Et  Curia  cum  illo.  For  when  he  undertook  to  make 
the  feoffment,  and  conveyed  to  another,  this  is  a  great  misfeasance." 

In  the  Exchequer  Chamber  case,  and  in  the  case  following,  in 
1476,  the  purchase-money  was  paid  at  the  time  of  the  bargain. 
Whether  the  same  was  true  of  the  two  cases  in  the  time  of 
Henry  VII.,  the  reports  do  not  disclose.  It  is  possible,  but  by  no 
means  clear,  that  a  payment  contemporaneous  with  the  promise  was 
not  at  that  time  deemed  essential.   Be  that  as  it  may,  if  money  was  in 

^  Y.  B.  II  H.  VI.  18,  pi.  10;  24,  pi.  I ;  55,  pl-  26.    See,  also,  Y.  B.  20  H.  VI. 
25  pi.  II. 
*Y.  B.  20  H.  VI.  34,  pl-  4. 
*Y.  B.  16  Ed.  IV.  9,  pl.  7. 
*Y.  B.  2  H.  VII.  12,  pl.  15. 
•Y.  B.  3  H.  VII.  14,  pl.  20. 


664  APPENDIX. 

fact  paid  for  a  promise  to  convey  land,  the  breach  of  the  promise  by 
a  conveyance  to  a  stranger  was  certainly,  as  already  seen,  an  action- 
able deceit  by  the  time  of  Henry  VII.  This  being  so,  it  must,  in  the 
nature  of  things,  be  only  a  question  of  time  when  the  breach  of  such 
a  promise,  by  making  no  conveyance  at  all,  would  also  be  a  cause  of 
action.  The  mischief  to  the  plaintiff  was  identical  in  both  cases. 
The  distinction  between  misfeasance  and  nonfeasance,  in  the  case  of 
promises  given  for  money,  was  altogether  too  shadowy  to  be  main- 
tained. It  was  formally  abandoned  in  1504,  as  appears  from  the  fol- 
lowing extract  from  the  opinion  of  Frowyk,  C.  J. :  "And  so,  if  I 
sell  you  ten  acres  of  land,  parcel  of  my  manor,  and  then  make  a  feoff- 
ment of  my  manor,  you  shall  have  an  action  on  the  case  against  me, 
because  I  received  your  money,  and  in  that  case  you  have  no  other 
remedy  against  me.  And  so,  if  I  sell  you  my  land  and  covenant  to 
enfeoff  you  and  do  not,  you  shall  have  a  good  action  on  the  case,  and 
this  is  adjudged.  *  *  *  ^nd  if  I  covenant  with  a  carpenter  to 
build  a  house  and  pay  him  £20  for  the  house  to  be  built  by  a  certain 
day,  now  I  shall  have  a  good  action  on  my  case  because  of  payment 
of  money,  and  still  it  sounds  only  in  covenant  and  without  payment 
of  money  in  this  case  no  remedy,  and  still  if  he  builds  it  and  mis- 
builds,  action  on  the  case  lies.  And  also  for  nonfeasance,  if  money 
paid  case  lies."^ 

The  gist  of  the  action  being  the  deceit  in  breaking  a  promise  on 
the  faith  of  which  the  plaintiff  had  been  induced  to  part  with  his 
money  or  other  property,  it  was  obviously  immaterial  whether  the 
promisor  or  a  third  person  got  the  benefit  of  what  the  plaintiff  gave 
up.  It  was  accordingly  decided  in  1520,  that  one  who  sold  goods  to 
a  third  person  on  the  faith  of  the  defendant's  promise  that  the  price 
should  be  paid  might  have  an  action  on  the  case  upon  the  promise.'^ 
This  decision  introduced  the  whole  law  of  parol  guaranty.  Cases 
in  which  the  plaintiff  gave  his  time  or  labor  were  as  much 
within  the  principle  of  the  new  action  as  those  in  which  he 
parted  with  property.  And  this  fact  was  speedily  recognized.  In 
Saint-Germain's  book,  published  in  1522,  the  student  of  law  thus 
defines  the  liability  of  a  promisor :  "If  he  to  whom  the  promise  is 
made  have  a  charge  by  reason  of  the  promise,  *  *  *  he  shall 
have  an  action  for  that  thing  that  was  promised,  though  he  that 
made  the  promise  have  no  worldly  profit  Idv  it."^  From  that  day  to 
this  a  detriment  has  always  been  deemed  a  valid  consideration  for 
a  promise  if  incurred  at  the  promisor's  request.* 

^  Keilw.  70,  pi.  25,  which  seems  to  be  the  same  case  as  Y.  B.  20  H.  VII.  8, 
pi.  18;  Y.  B.  21  H.  VII.  41,  pi.  66,  per  Fineux,  C.  J.,  accord.  See,  also, 
Brooke's  allusion  to  an  "action  on  the  case  upon  an  assumpsit  pro  tali 
summa."  Br.  Ab.  Disccit,  pi.  29.  In  1455  there  was  an  action  on  the  case  for 
a  nonfeasance  against  a  defendant  who  "assumpsit  super  se  pro  certa  pecuniat 
summa"  but  "machinans,  etc.,  made  no  enrolment."   Y.  B.  34  H.  VI.  4,  pi.  12. 

*Y.  B.  12  H.  VIII.  II,  pi.  3. 

"Doct.  and  Stud.  Dial.  II.  c.  24. 

'Y.  B.  27  H.  VIII.  24,  pi.  3;  Pecke  v.  Redman  (i555\  T^Y-  ii3,  the  earliest 


HISTORY    OF   ASSUMPSIT.  665 

Jealousy  of  the  growing  jurisdiction  of  the  chancellors  was  doubt- 
less a  potent  influence  in  bringing  the  common-law  judges  to  the 
point  of  allowing  the  action  of  assumpsit.  Fairfax,  J.,  in  1481,  ad- 
vised pleaders  to  pay  more  attention  to  actions  on  the  case,  and 
thereby  diminish  the  resort  to  Chancery  ;^  and  Fineux,  C.  J.,  re- 
marked, after  that  advice  had  been  followed  and  sanctioned  by  the 
courts,  that  it  was  no  longer  necessary  to  sue  a  subpoena  in  such 
cases,^ 

That  equity  gave  relief,  before  1500,  to  a  plaintiff  who  had  in- 
curred detriment  on  the  faith  of  the  defendant's  promise,  is  reasona- 
bly clear,  although  there  are  but  three  reported  cases. ^  In  one  of 
them,  between  1377  and  1399,  the  defendant  promised  to  convey  cer- 
tain land  to  the  plaintiff,  who,  trusting  in  the  promise,  paid  out 
money  in  travelling  to  London  and  consulting  counsel ;  and  upon  the 
defendant's  refusal  to  convey,  prayed  for  a  subpoena  to  compel  the 
defendant  to  answer  of  his  ''deceit."*  The  bill  sounds  in  tort  rather 
than  in  contract,  and  inasmuch  as  even  cestuis  que  use  could  not 
compel  a  conveyance  by  their  f coffers  to  use  at  this  time,  its  object 
was  doubtless  not  specific  performance,  but  reimbursement  for  the 
expenses  incurred.  Appilgarth  v.  Sergeantson^  ( 1438)  was  also  a 
bill  for  restitutio  in  integrum,  savoring  strongly  of  tort.  It  was 
brought  against  a  defendant  who  had  obtained  the  plaintiff's  money 
by  promising  to  marry  her,  and  who  had  then  married  another  in 
"grete  deceit."'^  The  remaining  case,  thirty  years  later,'  does  not 
differ  materially  from  the  other  two.  The  defendant,  having  induced 
the  plaintiff  to  become  the  procurator  of  his  benefice,  by  a  promise  to 
save  him  harmless  for  the  occupancy,  secretly  resigned  his  benefice, 
and  the  plaintiff,  being  afterward  vexed  for  the  occupancy,  obtained 
relief  by  subpoena. 

Both  in  equity^  and  at  law,  therefore,  a  remedial  breach  of  a 

reported  case  of  assumpsit  upon  mutual  promises;  Webb's  Case  (1578),  4 
Leon,  no;  Richards  v.  Bartlett  (1584),  i  Leon.  19;  Baxter  v.  Read  (1585),  3 
Dyer  272,  b,  note;  Foster  v.  Scarlett  (1588),  Cro.  El.  70;  Sturlyn  v.  Albany 
(1588)  Cro.  El.  57;  Greenleaf  v.  Barker  (1590),  Cro.  El.  193;  Knight  v.  Rush- 
worth  (1596),  Cro.  El.  469;  Bane's  Case  (161 1),  9  Rep.  93,  b.  These  au- 
thorities disprove  the  remark  of  Mr.  Justice  Holmes  (Common  Law,  287) 
that  "the  law  oscillated  for  a  time  in  the  direction  of  reward,  as  the  true  es- 
sence of  consideration."  In  the  cases  cited  in  support  of  that  remark  the  ar- 
gument turned  upon  the  point  of  benefit  as  the  only  arguable  point.  The  idea 
that  the  plaintiff  in  those  cases  had,  in  fact,  incurred  a  detriment  would  have 
seemed  preposterous.  Professor  Langdell's  observations  (Summary  of  Con- 
tract, §  64)  are  open  to  similar  criticism. 

^  Y.  B.  21  Ed.  IV.  23,  pi.  6. 

=  Y.  B.  21  H.  VIL  41.  pi.  66. 

^  Two  other  cases  are  given  by  Mr.  S.  R.  Bird  in  the  Antiquary,  Vol.  IV.,  p. 
i8s ;  Vol.  v.,  p.  38.    See  8  Harv.  L.  R.  256. 

*2  Cal.  Ch.  II. 

"  I  Cal.  Ch.  XLI. 

"An  action  on  the  case  was  allowed  under  similar  circumstances  in  1505, 
Anon.,  Cro.  El.  79  (cited). 

'Y.  B.  8  Ed.  TV.  4.  pl-  II. 

*The   Chancellor    (Stillington)    says,   it   is   true,   that   a    subpcena   will    lie 


666  APPENDIX. 

parol  promise  was  originally  conceived  of  as  a  deceit ;  that  is,  a  tort. 
Assumpsit  was  in  several  instances  distinguished  from  contract.^ 
By  a  natural  transition,  however,  actions  upon  parol  promises  came 
to  be  regarded  as  actions  ex  contractu^  Damages  were  soon  as- 
sessed, not  upon  the  theory  of  reimbursement  for  the  loss  of  the 
thing  given  for  the  promise,  but  upon  the  principle  of  compensation 
for  the  failure  to  obtain  the  thing  promised.  Again,  the  liability  for 
a  tort  ended  with  the  life  of  the  wrongdoer.  But  after  the  struggle 
of  a  century,  it  was  finally  decided  that  the  personal  representatives 
of  a  deceased  person  were  as  fully  liable  for  his  assumpsits  as  for 
his  covenants.^  Assumpsit,  however,  long  retained  certain  traces 
of  its  delictual  origin.  The  plea  of  not  guilty  was  good  after  verdict, 
"because  there  is  a  deceit  alleged."*  Chief  Baron  Gilbert  explains 
the  comprehensive  scope  of  the  general  issue  in  assumpsit  by  the 
fact  that  "the  gist  of  the  action  is  the  fraud  and  delusion  that  the 
defendant  hath  ofifered  the  plaintiff  in  not  performing  the  promise 
he  had  made,  and  on  relying  on  which  the  plaintiff  is  hurt."^  This 
allegation  of  deceit,  in  the  familiar  form :  "Yet  the  said  C.  D.,  not 
regarding  his  said  promise,  but  contriving  and  fraudulently  intend- 
ing, craftily  and  subtly,  to  deceive  and  defraud  the  plaintiff,"  etc.,*' 
which  persisted  to  the  present  century,  is  an  unmistakable  mark  of 
the  genealogy  of  the  action.  Finally,  the  consideration  must  move 
from  the  plaintiff  to-day,  because  only  he  who  had  incurred  detri- 
ment upon  the  faith  of  the  defendant's  promise,  could  maintain  the 
action  on  the  case,  for  deceit  in  the  time  of  Henry  VII. 

The  view  here  advanced  as  to  the  origin  of  special  assumpsit,  al- 
though reached  by  an  independent  process,  accords  with,  it  will  be 

against  a  carpenter  for  breach  of  his  promise  to  build.  But  neither  this  re- 
mark, nor  the  statement  in  Diversity  of  Courts,  Chancerie,  justifies  a  belief 
that  equity  ever  enforced  gratuitous  parol  promises.  8  Harv.  L.  Rev.  255- 
258.  But  see  Holmes,  i  L.  Q.  Rev.  172,  173;  Salmond,  3  L.  Q.  Rev.  173. 
The  practice  of  decreeing  specific  performance  of  any  promises  can  hardly 
be  much  older  than  the  middle  of  the  sixteenth  century.  Bro.  Ab.  Act.  on 
Case,  pi.  72.  Specific  Performance  of  Contracts,  Green  Bag,  vol.  i,  p.  26. 
The  invalidity  of  a  miduni  pactum  was  clearly  stated  by  Saint-Germain  in 
1531.  Doct.  &  St.  Dial.  II.,  Ch.  22,  23  and  24.  See  similar  statements  in  a 
little  treatise  concerning  writs  of  subpoena,  Doct.  &  St.  (i8th  ed.)  Ap- 
pendix, 17,  Harg.  L.  Tr.  334,  which  was  written  shortly  after  1523. 

^  Y.  B.  27  H.  VIII.  24,  25,  pi.  3;  Sidenham  v.  Worlington,  2  Leon.  224; 
Banks  v.  Thwaites,  3  Leon.  72>',  Shandois  v.  Simpson,  Cro.  El.  880;  Sands 
v.  Trevilian,  Cro.  Car.  107;  Doct.  &  St.  Dial.  II.,  Ch.  23  and  24;  Bret  v.  J.  S.. 
Cro.  El.  756;  Milles  v.  Millcs,  Cro.  Car.  241;  Jordan  v.  Tompkins,  6  Mod.  77. 
Contract  originally  meant  what  we  now  call  a  real  contract,  that  is,  a  contract 
arising  from  the  receipt  of  a  quid  pro  quo;  in  other  words,  a  debt.  See  8 
Har.  L.  Rev.  253,  n.  3. 

"Williams  v.  Hide,  Palm.  548,  549;  Wirral  v.  Brand,  i  Lev.  165. 

'Legate  v.  Pinchion,  9  Rep.  86;  Sanders  v.  Esterby,  Cro.  Jac.  417. 

^  Corby  v.  Brown,  Cro.  El.  470;  Elrington  v.  Doshant,  i  Lev.  142. 

"  Common  Pleas.  53. 

"In  Impey's  King's  Bench  C.qth  ed.)  486.  the  pleader  is  directed^  to  omit 
these  words  in  declaring  against  a  Peer:  "For  the  Lords  have  adjudged  it 
a  very  high  contempt  and  misdemeanor,  in  any  person,  to  charge  them  with 
any  species  of  fraud  or  deceit." 


HISTORY   OF   ASSUMPSIT.  667 

seen,  and  confirms,  it  is  hoped,  the  theory  first  advanced  by  Judge 
Hare. 

The  origin  of  indebitatus  assumpsit  may  be  explained  in  a  few 
words :  Slade's  case,^  decided  in  1603,  is  commonly  thought  to  be 
the  source  of  this  action.-  But  this  is  a  misapprehension.  Itidebi- 
tatiis  assujiipsit  upon  an  express  promise  is  at  least  sixty  years 
older  than  Slade's  case.^  The  evidence  of  its  existence  throughout 
the  last  half  of  the  sixteenth  century  is  conclusive.  There  is  a  note 
by  Brooke,  who  died  in  1558,  as  follows:  "Where  one  is  indebted 
to  me,  and  he  promises  to  pay  me  before  Michaelmas,  I  may  have 
an  action  of  debt  on  the  contract,  or  an  action  on  the  case  on  the 
promise."*  In  Manwood  v.  Burston^  (1588),  Manwood,  C.  B., 
speaks  of  "three  manners  of  considerations  upon  which  an  assump- 
sit may  be  grounded:  (i)  A  debt  precedent,  (2)  where  he  to  whom 
such  a  promise  is  made  is  damnified  by  doing  anything,  or  spends 
his  labor  at  the  instance  of  the  promisor,  although  no  benefit  comes 
to  the  promisor     *     *     *     (3)  or  there  is  a  present  consideration."*^ 

The  Queen's  Bench  went  even  further.  In  that  court  proof  of  a 
simple  contract  debt,  w'ithout  an  express  promise,  would  support 
an  indebitatus  assumpsit.'^  The  other  courts,  for  many  years,  resisted 
this  doctrine.  Judgments  against  a  debtor  in  the  Queen's  Bench 
upon  an  implied  assumpsit  were  several  times  reversed  in  the  Ex- 
chequer Chamber.-  But  the  Queen's  Bench  refused  to  be  bound  by 
these  reversals,  and  it  is  the  final  triumph  of  that  court  that  is  signal- 
ized by  Slade's  case,  in  which  the  jury  found  that  "there  was  no 
other  promise  or  assumption,  but  only  the  said  bargain ;"  and  yet 
all  the  judges  of  England  resolved  "that  every  contract  executory 
implied  an  assumpsit." 

Indebitatus  assumpsit,  unlike  special  assumpsit,  did  not  create  a 
new  substantive  right ;  it  was  primarily  only  a  new  form  of  proced- 
ure, whose  introduction  was  facilitated  by  the  same  circumstances 
which  had  already  made  Case  concurrent  with  Detinue.  But  as  an 
express  assumpsit  was  requisite  to  a  charge  the  bailee,  so  it  was  for  a 
long  time  indispensable  to  charge  the  debtor.  The  basis  or  cause  of 
action  was,  of  course,  the  same  as  the  basis  of  debt,  i.  e.,  quid  pro 
quo,  or  benefit.    This  may  explain  the  inveterate  practice  of  defining 

^4  Rep.  92a;  Yelv.  21;  Moore,  433,  667. 

^Langdell,  Cont.,  §  48;  Pollock,  Cont.  (4th  ed.)  144;  Hare,  Cont.  136,  137; 
Salmon d,  3  L.  Q.  Rev.  179. 

''Br.  Ab.  Act.  on  Case,  pi.  105  (1542). 

*  Br.  Ab.  Act.  on  Case,  pi.  5. 

"2  Leon.  203,  204. 

"See  further,  Anon.  (B.  R.  1572),  Dal.  84,  pi.  35;  Pulmant's  Case  (C.  B. 
1585),  4  Leon.  2;  Anon.  (C.  B.  1587),  Godb.  98,  pi.  12;  Gill  v.  Hanvood  (C. 
B.  1587),  I  Leon.  61.  It  was  even  decided  that  assumpsit  would  lie  upon  a 
subsequent  promise  to  pay  a  precedent  debt  due  by  covenant.  Ashbrooke  v. 
Snape  (B.  R.  1591),  Cro.  El.  240.    But  this  decision  was  not  followed. 

'Edwards  v.  Burr  (1573),  Dal.  108;  Anon.  (1583),  Godb.  13;  Estrigge  v. 
Owles  (1589),  3  Leon.  200. 

^  Hinson  v.  Burridge,  Moore,  701;  Turges  v.  Beecher,  Moore,  694;  Para- 
mour v.  Payne,  Moore,  703;  Maylard  v.  Kester,  Moore,  711. 


668  APPENDIX. 

consideration  as  either  a  detriment  to  the  plaintiff  or  a  benefit  to  the 
defendant. 

Promises  not  being  binding  of  themselves,  but  only  because  of  the 
detriment  or  the  debt  for  which  they  were  given,  a  need  was  natu- 
rally felt  for  a  single  word  to  express  the  additional  and  essential 
requisite  of  all  parol  contracts.  No  word  was  so  apt  for  the  purpose 
as  the  word  "consideration,"  Soon  after  the  reign  of  Henry  VIII., 
ii  not  earlier,  it  became  the  practice,  in  pleading,  to  lay  all  assumpsits 
as  made  in  consideratione  of  the  detriment  or  debt.^  And  these 
words  became  the  peculiar  mark  of  the  technical  action  of  assumpsit, 
as  distinguished  from  other  actions  on  the  case  against  surgeons  or 
carpenters,  bailees  and  warranting  vendors,  in  which,  as  we  have 
seen,  it  was  still  customary  to  allege  an  undertaking  by  the  de- 
fendant. 

It  follows,  from  what  has  been  written,  that  the  theory  that  con- 
sideration is  a  "modification  of  quid  pro  quo"  is  not  tenable.  On  the 
one  hand,  the  consideration  of  indebitatus  assumpsit  was  identical 
with  quid  pro  quo,  and  not  a  modification  of  it.  On  the  other  hand, 
the  consideration  of  detriment  was  developed  in  a  field  of  the  law 
remote  from  debt ;  and,  in  view  of  the  sharp  contrast  that  has  always 
been  drawn  between  special  assumpsit  and  debt,  it  is  impossible  to 
believe  that  the  basis  of  the  one  action  was  evolved  from  that  of  the 
other.2 

Nor  can  that  other  theory  be  admitted  by  which  consideration  was 
borrowed  from  equity,  as  a  modification  O'f  the  Roman  "causa."  The 
word  "consideration"  was  doubtless  first  used  in  equity ;  but  without 
any  technical  significance  before  the  sixteenth  century.^  Considera- 
tion in  its  essence,  however,  whether  in  the  form  of  detriment  or 
debt,  is  a  common-law  growth.  Uses  arising  upon  a  bargain  or 
covenant  were  of  too  late  introduction  to  have  any  influence  upon 
the  law  of  assumpsit.  Two  out  of  three  judges  questioned  their  va- 
lidity in  1505,  a  year  after  assumpsit  was  definitely  established.* 

^In  Joscelin  v.  Sheldon  (1557),  3  Leon.  4,  Moore,  13,  Ben.  &  Dal.  57,  pi. 
S3,  s.  c,  a  promise  is  described  as  made  "in  consideration  of,''  etc.  An  ex- 
amination of  the  original  records  might  disclose  an  earlier  use  of  these  tech- 
nical words  in  connection  with  an  assumpsit.  But  it  is  a  noteworthy  fact, 
that  in  the  reports  of  the  half  dozen  cases  of  the  reign  of  Henry  VIII.  and 
Edward  VI.  the  word  "consideration"  does  not  appear.  In  Whorwood  v. 
Gibbons  (1577),  Goldsb.  48,  i  Leon.  61,  s.  c,  it  was  said  by  the  court  to  be 
"a  common  course  in  actions  upon  the  case  against  him,  by  whom  the  debt  is 
due,  to  declare  without  any  words  in  consideratione." 

^  Sec,  also,  Mr.  Salmoncl's  criticism  of  this  theory,  in  3  L.  Q.  Rev.  178. 

"31  H.  VI.  Fitz.  A.  Subp.,  pi.  2^:  Fowler  v.  Iwardby,  i  Cal.  Ch.  LXVIII; 
Pole  V.  Richard,  1  Cal.  Ch.  LXXXVIIL;  Y.  B.  20  H.  VII.  10,  pi.  20;  Br.  Feff. 
al  use,  pi.  40;  Bcnl.  &  Dal.  16,  pi.  20. 

*Y.  B.  21  H.  VII.  18,  pi.  30.  The  consideration  of  blood  was  not  sufficient 
to  create  a  use,  until  the  decision,  in  1565,  of  Sharrington  v.  Strotton,  Plow. 
295.  In  1533  Hales  said,  "A  man  cannot  change  a  use  by  a  covenant  which 
is  executed  before,  as  to  covenant  to  bee  seised  to  the  use  of  W.  S.  because 
that  W.  S.  is  his  cosin  ;  or  because  that  W.  S.  before  gave  to  him  twenty 
pound,  except  the  twenty  pound  was  given  to  have  the  same  Land.     But 


HISTORY    OF   ASSUMPSIT.  669 

But  we  may  go  further.  Not  only  was  the  consideration  of  the  com- 
mon-law action  of  assumpsit  not  borrowed  from  equity,  but,  on  the 
contrary,  the  consideration,  which  gave  validity  to  parol  uses  by  bar- 
gain and  agreement,  was  borrowed  from  the  common  law.  The 
bargain  and  sale  of  a  use,  as  well  as  the  agreement  to  stand  seised, 
were  not  executory  contracts,  but  conveyances.  No  action  at  law 
could  ever  be  brought  against  a  bargainor  or  covenantor.^  The  ab- 
solute owner  of  land  was  conceived  of  as  having  in  himself  two  dis- 
tinct things,  the  seisin  and  the  use.  As  he  might  make  livery  of 
seisin  and  retain  the  use,  so  he  was  permitted,  at  last,  to  grant  away 
the  use  and  keep  the  seisin.  The  grant  of  the  use  was  furthermore 
assimilated  to  the  grant  of  a  chattel  or  money.  A  quid  pro  quo,  or  a 
deed,  being  essential  to  the  transfer  of  a  chattel  or  the  grant  of  a 
debt,-  it  was  required  also  in  the  grant  of  a  use.^  Equity  might 
conceivably  have  enforced  uses  wherever  the  grant  was  by 
deed.  But  the  chancellors  declined  to  carry  the  innovation  so  far  as 
this.  They  enforced  only  those  gratuitous  covenants  which  tended 
to  "the  establishment  of  the  house"  of  the  covenantor ;  in  other 
words,  covenants  made  in  consideration  of  blood  or  marriage.* 

II.     Implied  Assumpsit. 

Nothing  impresses  the  student  of  the  common  law  more  than  its 
extraordinary  conservatism.  The  reader  will  easily  call  to  mind 
numerous  rules  in  the  law  of  Real  Property  and  Pleading  which 
illustrate  the  persistency  of  archaic  reverence  for  form  and  of  scho- 

otherwise  of  a  consideration,  present  or  future,  for  the  same  purpose  as  for 
one  hundred  pounds  paid  for  the  hand  tempore  conventionis,  or  to  bee  paid  at 
a  future  day,  or  for  to  marry  his  daughter  or  the  like."  Bro.  Ab.  Feff.  al 
use,  54. 

^  Plow.  298,  308 ;  Buckley  v.  Simonds,  Winch  35-37,  59,  61 ;  Hore  v.  Dix, 
I  Sid.  25,  27;  Pybus  v.  Mitford,  2  Lev.  75,  77. 

'That  a  debt,  as  suggested  by  Professor  Langdell  (Contracts,  §  100),  was 
regarded  as  a  grant,  finds  strong  confirmation  in  the  fact  that  debt  was  the  ex- 
clusive remedy  upon  a  covenant  to  pay  money  down  to  a  late  period.  Chawner 
V.  Bowes,  Godb.  217.  See,  also,  i  Roll.  Ab.  518,  pi.  2  and  3;  Brown  v.  Hancock, 
Hetl.  no,  III,  per  Barklcy. 

^  Bacon,  St.  of  Uses  (Rowe's  ed.)  13-14. 

*"If  the  bargain  was  for  the  sale  of  land  and  there  was  no  livery  of  seisin, 
the  buyer  had  no  common-law  remedy  for  the  recovery  of  the  land,  like  that 
of  Detinue  for  chattels.  Equity,  however,  near  the  beginning  of  the  sixteenth 
century,  supplied  the  common-law  defect  by  compelling  the  seller  to  hold 
the  land  to  the  use  of  the  buyer,  if  the  latter  had  either  paid  or  agreed  to  pay 
the  purchase  money.  Br.  Ab.  Feoff,  al  Use,  54;  Barker  v.  Keate,  i  Freem. 
249;  2  Mod.  249,  s.  c. ;  Gilbert,  Uses  52;  2  Sand.  Uses  57.  The  considera- 
tion essential  to  give  the  buyer  the  use  of  land  was  therefore  identical  with 
the  quid  pro  quo  which  enabled  him  to  maintain  Detinue  for  a  chattel.  Inas- 
much as  the  consideration  for  parol  uses  was  thus  clearly  borrowed  from  the 
common-law  doctrine  of  quid  pro  quo,  it  seems  in  the  highest  degree  improb- 
able that  the  consideration  for  an  assumpsit  was  borrowed  by  the  common 
law  from  equity."  From  the  writer's  Essay  on  Parol  Contracts  Prior  to 
Assumpsit,  8  Harv.  L.  Rev.  259. 


670  APPENDIX. 

lastic  methods  of  interpretation.  But  these  same  characteristics  will 
be  found  in  ahnost  an}'  branch  of  the  law  by  one  who  carries  his  in- 
vestigations as  far  back  as  the  beginning  of  the  seventeenth  century. 
The  history  of  assumpsit,  for  example,  although  the  fact  seems  to 
have  escaped  general  observation,  furnishes  a  convincing  illustration 
of  the  vitality  of  mediaeval  conceptions. 

We  have  had  occasion  in  the  preceding  part  of  this  paper,  to  see 
that  an  express  assumpsit  was  for  a  long  time  essential  in  the  actions 
of  tort  against  surgeons  or  carpenters,  and  bailees.  It  also  appeared 
that  in  the  action  of  tort  for  a  false  warranty  the  vendor's  affirmation 
as  to  quality  or  title  was  not  admissible,  before  the  time  of  Lord 
Holt,  as  a  substitute  for  an  express  undertaking.  We  are  quite  pre- 
pared, therefore,  to  find  that  the  action  of  assumpsit  proper  was,  for 
generations,  maintainable  only  upon  an  express  promise.  Further- 
more, assumpsit  would  not  lie  in  certain  cases  even  though  there 
were  an  express  promise.  For  example,  a  defendant  who  promised 
to  pay  a  sum  certain  in  exchange  for  a  quid  pro  quo  was,  before 
Slade's  case,^  chargeable  only  in  debt  unless  he  made  a  second  prom- 
ise to  pay  the  debt. 

It  was  only  by  degrees  that  the  scope  of  the  action  was  enlarged. 
The  extension  was  in  three  directions.  In  the  first  place,  indebitatus 
assumpsit  became  concurrent  with  debt  upon  a  simple  contract  in  all 
cases.  Secondly,  proof  of  a  promise  implied  in  fact,  that  is,  a  prom- 
ise inferred  from  circumstantial  evidence,  was  at  length  deemed 
sufficient  to  support  an  action.  Finally  indebitatus  assumpsit  became 
the  appropriate  form  of  action  upon  constructive  obligations,  or 
quasi-contracts  for  the  payment  of  money.  These  three  develop- 
ments will  be  considered  separately. 

Although  indebitatus  assumpsit  upon  an  express  promise  was  val- 
uable so  far  as  it  went,  it  could  not  be  resorted  to  by  plaintift's  in  the 
majority  of  cases  as  a  protection  from  wager  of  law  by  their  debtors. 
For  the  promise  to  be  proved  must  not  only  be  express,  but  subse- 
quent to  the  debt.  In  an  anonymous  case,  in  1572,  Manwood  ob- 
jected to  the  count  that  the  plaintifif  "ought  to  have  said  quod  postca 
assumpsit,  for  if  he  assumed  at  the  time  of  the  contract,  then  debt 
lies,  and  not  assumpsit ;  but  if  he  assumed  after  the  contract,  then 
an  action  lies  upon  the  assumpsit,  otherwise  not,  quod  Whiddon 
and  South  COTE,  J  J.,  with  the  assent  of  Catlin,  C.  J.,  concesse- 
runt."^  The  consideration  in  this  class  of  cases  was  accordingly  de- 
scribed as  a  "debt  precedent."^  The  necessity  of  a  subsequent  prom- 
ise is  conspicuously  shown  by  the  case  of  Maylard  v.  Kester.^  The 
allegations  of  the  count  were,  that,  in  consideration  that  the  plain- 
tifif  would  sell  and  deliver  to  the  defendant  certain  goods,  the  latter 
promised  to  pay  therefor  a  certain  price ;  that  the  plaintiff  did  sell 

'4  Rep.  92  a. 

^Dal.  84,  pi.  35. 

'  ManwcKxl  v.  Burston,  2  Leon,  203,  204;  supra,  p.  667. 

*  Moore,  711   (1601). 


HISTORY    OF   ASSUMPSIT.  67 1 

and  deliver  the  goods,  and  that  the  defendant  did  not  pay  according 
to  his  promise  and  undertaking.  The  plaintiff  had  a  verdict  and 
judgment  thereon  in  the  Queen's  Bench;  but  the  judgment  was  re- 
versed in  the  Exchequer  Chamber  "because  debt  lies  properly,  and 
not  an  action  on  the  case ;  the  matter  proving  a  perfect  sale  and 
contract." 

What  was  the  peculiar  significance  of  the  subsequent  promise? 
Why  should  the  same  courts  which,  for  sixty  years  before  Slade's 
case,  sanctioned  the  action  of  assumpsit  upon  a  promise  in  considera- 
tion of  a  precedent  debt,  refuse,  during  the  same  period,  to  allow 
the  action,  when  the  receipt  of  the  quid  pro  quo  was  contemporane- 
ous with  or  subsequent  to  the  promise?  The  solution  of  this  puzzle 
must  be  sought,  it  is  believed,  in  the  nature  of  the  action  of  debt. 
A  simple  contract  debt,  as  well  as  a  debt  by  specialty,  was  originally 
conceived  of,  not  as  a  contract  in  the  modern  sense  of  the  term,  that 
is,  as  a  promise,  but  as  a  grant.^  A  bargain  and  sale,  and  a  loan, 
were  exchanges  of  values.  The  action  of  debt,  as  several  writers 
have  remarked,  was  a  real  rather  than  a  personal  action.  The  judg- 
ment was  not  for  damages,  but  for  the  recovery  of  a  debt,  regarded 
as  a  res.  This  conception  of  a  debt  was  clearly  expressed  by 
Vaughan,  J.,  who,  some  seventy  years  after  Slade's  case,  spoke  of 
the  action  of  assumpsit  as  "much  inferior  and  ignobler  than  the 
action  of  debt,"  and  characterized  the  rule  that  every  contract  exec- 
utory implies  a  promise  as  "a  false  gloss,  thereby  to  turn  actions  of 
debt  into  actions  on  the  case ;  for  contracts  of  debt  are  reciprocal 
grants. "- 

Inasmuch  as  the  simple  contract  debt  had  been  created  from  time 
immemorial  by  a  promise  or  agreement  to  pay  a  definite  amount  of 
money  in  exchange  for  a  quid  pro  quo,  the  courts  could  not  allow  an 
action  of  assumpsit  also  upon  such  a  promise  or  agreement,  without 
admitting  that  two  legal  relations,  fundamentally  distinct,  might  be 
produced  by  one  and  the  same  set  of  words.  This  implied  a  liberality 
of  interpretation  to  which  the  lawyers  of  the  sixteenth  century  had 
not  generally  attained.  To  them  it  seemed  more  natural  to  consider 
that  the  force  of  the  words  of  agreement  was  spent  in  creating  the 
debt.  Hence  the  necessity  of  a  new  promise,  if  the  creditor  desired 
to  charge  his  debtor  in  assvimpsit. 

As  the  actions  of  assumpsit  multiplied,  however,  it  would  naturally 
become  more  and  more  difficult  to  discriminate  between  promises  to 
pay  money  and  promises  to  doi  other  things.  The  recognition  of  an 
agreement  to  pay  money  for  a  quid  pro  quo  in  its  double  aspect, 
that  is,  as  being  both  a  grant  and  a  promise,  and  the  consequent  ad- 
missibility of  assumpsit,  with  its  procedural  advantages,  as  a  con- 
current remedy  with  debt  were  inevitable.     It  was  accordingly  re- 

^  See  Langdell,  Contracts,  §  100. 

"Edgecomb  v.  Dee,  Vaugh.  89,  loi.  Si  homme  countast  simplcmcnt  d'un 
graunte  d'un  dette,  il  ne  serra  mye  resccu  saiinc  espccialte."  Per  Sharshulle, 
J.,  Y.  B.  II  &  12  Ed.  III.,  587. 


6/2  APPENDIX. 

solved  by  all  the  justices  and  barons  in  Slade's  case,  in  1603,  although 
"there  was  no  other  promise  or  assumption  but  the  said  bargain," 
that  "every  contract  executory  imports  in  itself  an  assumpsit,  for 
when  one  agrees  to  pay  money,  or  to  deliver  anything,  thereby  he 
assumes  or  promises  to  pay  or  deliver  it ;  and,  therefore,  when  one 
sells  any  goods  to  another,  and  agrees  to  deliver  them  at  a  day  to 
come,  and  the  other,  in  consideration  thereof,  agrees  to  pay  so  much 
money  at  such  a  day,  in  that  case  both  parties  may  have  an  action 
of  debt,  or  an  action  on  the  case  on  assumpsit,  for  the  mutual  execu- 
tory agreement  of  both  parties  imports  in  itself  reciprocal  actions 
upon  the  case  as  well  as  actions  of  debt,"  Inasmuch  as  the  judges 
were  giving  a  new  interpretation  to  an  old  transaction ;  since  they, 
in  pursuance  of  the  presumed  intention  oi  the  parties,  were  working 
out  a  promise  from  words  of  agreement  which  had  hitherto  been 
conceived  of  as  sounding  only  in  grant,  it  was  not  unnatural  that 
they  should  speak  of  the  promise  thus  evolved  as  an  "implied 
assumpsit."  But  the  promise  was  in  no  sense  a  fiction.  The  ficti- 
tious assumpsit,  by  means  of  which  the  action  of  indebitatus  assump- 
sit acquired  its  greatest  expansion,  was  an  innovation  many  years 
later  than  Slade's  case. 

The  account  just  given  of  the  development  of  indebitatus  assump- 
sit, although  novel,  seems  to  find  confirmation  in  the  parallel  devel- 
opment of  the  action  of  covenant.  Strange  as  it  may  seem,  covenant 
was  not  the  normal  remedy  upon  a  covenant  to  pay  a  definite  amount 
of  money  or  chattels.  Such  a  covenant  being  regarded  as  a  grant  of 
the  money  or  chattels,  debt  was  the  appropriate  action  for  their  re- 
covery.^ The  writer  has  discovered  no  case  in  which  a  plaintiff 
su-ceeded  in  an  action  of  covenant,  where  the  claim  was  for  a  sum 
certain,  antecedent  to  the  seventeenth  century ;  but  in  an  action  of 
debt  upon  such  a  claim,  in  the  Queen's  Bench,  in  1585,  "it  was 
holden  by  the  court  that  an  action  of  covenant  lay  upon  it,  as  well 
as  an  action  of  debt,  at  the  election  of  the  plaintiff."^  The  same 
right  of  election  was  conceded  by  the  court  in  two  cases^  in  1609, 
in  terms  which  indicate  that  the  privilege  was  of  recent  introduction. 
It  does  not  appear  in  what  court  these  cases  were  decided ;  but  it 
seems  probable  that  they  were  in  the  King's  Bench,  for,  in  Chawner 
V.  Bowes,*  in  the  Common  Bench,  four  years  later,  Warburton  and 
Nichols,  JJ.,  said :  "If  a  man  covenant  to  pay  iio  at  a  day  certain, 
an  action  of  debt  lieth  for  the  money,  and  not  an  action  of  covenant." 
As  late  as  1628,  in  the  same  court,  Berkeley,  Sergeant,  in  answer  to 

'Anon.  (1591),  I  Leon.  208.  "Per  curiam.  If  one  covenant  to  pay  me  £100 
at  such  a  day,  an  action  of  debt  lieth;  a  fortiori  when  the  words  of  the  deed 
are  covenant  and  grant,  for  the  word  covenant  sometimes  sounds  in  covenant, 
sometimes  in  contract  secundum  stibjectani  matcriam." 

'  Anon.,  3  Leon.  119. 

'Anon.,  I  Roll.  Ab.  518,  pi.  3;  Strong  v.  WaUs,  i  Roll.  Ah.  518,  pi.  2.     See, 

also,  Mordant  v.  Watts,  Brownl.  19;  Anon.,  Sty.  2>i;  Frere  v.  ,  Sty. 

133;  Norrice's  Case,  Hard,  178. 

*^Godb.  217. 


HISTORY    OF    ASSUMPSIT.  673 

the  objection  that  covenant  did  not  He,  but  debt,  against  a  defendant 
who  had  covenanted  to  perform  an  agreement,  and  had  obliged  him- 
self in  a  certain  sum  for  its  performance,  admitted  that,  "if  a  cove- 
nant had  been  for  £30,  then  debt  only  lies ;  but  here  it  is  to  perform 
an  agreement."^  Precisely  when  the  Common  Bench  adopted  the 
practice  of  the  King's  Bench  it  is,  perhaps,  impossible  to  discover ; 
but  the  change  was  probably  effected  before  the  end  of  the  reign  of 
Charles  I, 

That  covenant  became  concurrent  with  debt  on  a  specialty  so 
many  years  after  assumpsit  was  allowed  as  a  substitute  for  debt  on 
a  simple  contract,  was  doubtless  due  to-  the  fact  that  there  was  no 
wager  of  law  in  debt  on  a  sealed  obligation. 

Although  the  right  to  a  trial  by  jury  was  the  principal  reason  for 
a  creditor's  preference  for  indehitatiis  asswnpsit,  the  new  action 
very  soon  gave  plaintillfs  a  privilege  which  must  have  contributed 
greatly  to  its  popularity.  In  declaring  in  debt,  except  possibly  upon 
an  account  stated,  the  plaintiff  was  required  to  set  forth  his  cause 
of  action  with  great  particularity.  Thus,  the  count  in  debt  must  state 
the  quantity  and  description  of  goods  sold,  with  the  details  of  the 
price,  all  the  particulars  of  a  loan,  the  names  of  the  persons  to  whom 
money  was  paid  with  the  amounts  of  each  payment,  the  names  of 
the  persons  from  whom  money  was  received  to  the  use  of  the  plain- 
tiff, with  the  amounts  of  each  receipt,  the  precise  nature  and  amount 
of  services  rendered.  In  indebitatus  assumpsit,  on  the  other  hand, 
the  debt  being  laid  as  an  inducement  or  conveyance  to  the  assumpsit, 
it  was  not  necessary  tO'  set  forth  all  the  details  of  the  transaction 
from  which  it  arose.  It  was  enough  to  allege  the  general  nature  of 
the  indebtedness,  as  for  goods  sold,-  money  lent,^  money  paid  at  the 
defendant's  request,*  money  had  and  received  to  the  plaintiff's  use'^ 
work  and  labor  at  the  defendant's  request,*'  or  upon  an  account 
stated,'^  and  that  the  defendant  being  so  indebted  promised  to  pay. 
This  was  the  origin  of  the  common  counts. 

In  all  the  cases  thus  far  considered  there  was  a  definite  bargain 
or  agreement  between  the  plaintiff  and  defendant.  But  instances, 
of  course,  occurred  in  which  the  parties  did  not  reduce  their  transac- 
tions to  the  form  of  a  distinct  bargain.  Services  would  be  rendered, 
for  example,  by  a  tailor  or  other  workman,  an  innkeeper  or  common 
carrier,  without  any  agreement  as  to  the  amount  of  compensation. 
Such  cases  present  no  difficulty  at  the  present  day,  but  for  centuries 

^ Brown  v.  Hancock,  Hetl.  no,  in. 

*  Hughes  V.  Rowbotham  (1592),  Popb.  .30,  31;  Woodford  v.  Deacon  (1608), 
Cro.  Jac.  206;  Gardiner  v.  Bellingham  (1612),  Hob.  5,  i  Roll.  R.  24,  s.  c. 

^Rooke  V.  Rooke  (1610),  Cro.  Jac.  245,  Yelv.  175,  s.  c. 

*  Rooke  V.  Rooke,  supra;  Moore  v.  Moore  (1611),  i  Bulst.  160, 
^Babington  v.  Lambert  (1616),  Moore,  854. 

®  Russell  V.  Collins  (1669),  I  Sid.  425,  i  Mod.  8,  i  Vent.  44,  2  Keb.  552,  s.  c. 
^Brinsley  v.   Partridge    (1611),  Hob.  88;  Vale  v.  Egles    (1605),  Yelv.   70, 
Cro.  Jac.  69. 

Woodruff's  C.vses — 43 


674  APPENDIX. 

there  was  no  common-law  action  by  which  compensation  could  be 
recovered.  Debt  could  not  be  maintained,  for  that  action  was  always 
for  the  recovery  of  a  liquidated  amount.^  Assumpsit  would  not  lie 
for  want  of  a  promise.  There  was  confessedly  no  express  promise ; 
to  raise  by  implication  a  promise  to  pay  as  much  as  the  plaintiff 
reasonably  deserved  for  his  goods  or  services  was  to  break  with  the 
most  venerable  traditions.  The  lawyer  of  to-day,  familiar  with  the 
ethical  character  of  the  law  as  now  administered,  can  hardly  fail  to 
be  startled  when  he  discovers  how  slowly  the  conception  of  a  promise 
implied  in  fact,  as  the  equivalent  of  an  express  promise,  made  its 
way  in  our  law. 

There  seems  to  have  been  no  recognition  of  the  right  to  sue  upon 
an  implied  quantum  meruit  before  1609.  The  innkeeper  was  the 
first  to  profit  by  the  innovation.  Reciprocity  demanded  that,  if  the 
law  imposed  a  duty  upon  the  innkeeper  to  receive  and  keep  safely, 
it  should  also  imply  a  promise  on  the  part  of  the  guest  to  pay  what 
w^as  reasonable.^  The  tailor  was  in  the  same  case  with  the  innkeeper, 
and  his  right  to  recover  upon  a  qiiaiitiiiii  meruit  v/as  recognized  in 
1610.^  Sheppard,*  citing  a  case  of  the  year  1632,  says :  "If  one 
bid  me  do  work  for  him,  and  do  not  promise  anything  for  it,  in  that 
case  the  law  implieth  the  promise,  and  I  may  sue  for  the  wages." 
But  it  was  only  four  years  before,  that  the  court  in  a  similar  case 
were  of  opinion  that  an  action  lay  if  the  party  either  before  or  after 
the  services  rendered  promised  to  pay  for  them,  "but  not  without  a 
special  promise."^  In  Nichols  v.  More®  (1661),  a  common  carrier 
resisted  an  action  for  negligence,  because,  no  price  for  the  carriage 
being  agreed  upon,  he  was  without  remedy  against  the  bailor.  The 
court,  however,  answered  that  "  the  carrier  may  declare  upon  a 
quantum  meruit  like  a  tailor,  and  therefore  shall  be  charged."'^  As 
late  as  1697,  Powell,  J.,  speaking  of  the  sale  of  goods  for  so  much 
as  they  were  worth,  thought  it  worth  while  to  add :  "And  note  the 
very  taking  up  of  the  goode  implies  such  a  contract."^ 

The  right  of  one  who  signed  a  bond  as  surety  for  another  without 
insisting  upon  a  counter  bond  or  express  promise  to  save  harmless, 

-"If  I  bring  cloth  to  a  tailor  to  have  a  cloak  made,  if  the  price  is  not 
ascertained  beforehand  that  I  shall  pay  for  the  work,  he  shall  not  have  an 
action  against  me."  Y.  B.  12  Ed.  IV.  9,  pi.  22,  per  Brian,  C.  J.  To  the 
same  effect,  Young  v.  Ashbumham  (1587),  3  Leon.  161;  Mason  v.  Welland 
(1688),  Skin.  23S,  242. 

^  "It  is  an  implied  promise  of  every  part,  that  is,  of  the  part  of  the  inn- 
keeper, that  he  will  preserve  the  goods  of  his  guest,  and  of  the  part  of  the 
guest,  that  he  will  pay  all  duties  and  charges  which  he  caused  in  the  house." 
Warbrooke  v.  Griffin,  2  Brownl.  254;  Moore,  876,  877,  s.  c. 

"  Six  Carpenters'  Case,  8  Rep.  147a.  But  the  statement  that  the  tailor  could 
recover  in  debt  is  contradicted  by  precedent  and  following  authorities. 

*  Actions  on  the  Case   (2d  cd.),  50. 

''Thursby  v.  Warren,  W.  Jones,  208. 

"i  Sid.  36.     Sec,  also.  Boson  v.  Sandford  (1689),  i  Show.  lOi,  per  Eyres,  J. 

'The  defendant's  objection  was  similar  to  the  one  raised  in  Y.  B.  3  H.  VI. 
36,  pi.  33,  supra,  p.  662  n.  i. 

"Ilayward  v.  Davenport,  Comb.  426. 


HISTORY    OF    ASSUMPSIT.  675 

to  charge  his  principal  upon  an  impHcd  contract  of  indemnity,  was 
developed  nearly  a  century  later.  In  Bosden  v.  Thinne^  (1603) 
the  plaintiff  at  the  defendant's  request  had  executed  a  bond  as  surety 
for  one  F.,  and  had  been  cast  in  a  judgment  thereon.  The  judges 
all  agreed  that  upon  the  first  request  only  assumpsit  did  not  lie,  Yel- 
VERTON,  J.,  adding:  "For  a  bare  request  does  not  imply  any  prom- 
ise, as  if  I  say  to  a  merchant,  I  pray  trust  J.  S.  with  iioo,  and  he 
does  so,  this  is  of  his  own  head,  and  he  shall  not  charge  me,  unless 
I  say  I  will  see  you  paid,  or  the  like."  The  absence  of  any  remedy 
at  law  was  conceded  in  1662.-  It  was  said  by  Duller,  J.,  in  Tous- 
saint  V.  Martinnant,"  that  the  first  case  in  which  a  surety,  who  had 
paid  the  creditor,  succeeded  in  an  action  at  law  against  the  principal 
for  indemnity,  "was  before  Gould,  J.,*  at  Dorchester,  which  was  de- 
cided on  equitable  grounds."  The  innovation  seems  to  be  due,  how- 
ever to  Lord  Mansfield,  who  ruled  in  favor  of  a  surety  in  Decker 
V.  Pope,  in  1757,  "observing  that  when  a  debtor  desires  another 
person  to  be  bound  with  him  or  for  him,  and  the  surety  is  afterward 
obliged  to  pay  the  debt,  this  is  a  sufficient  consideration  to  raise  a 
promise  in  law.""'"' 

The  late  development  of  the  implied  contract  to  pay  quantjini 
meruit,  and  to  indemnify  a  surety,  would  be  the  more  surprising,  but 
for  the  fact  that  Equity  gave  relief  to  tailors  and  the  like,  and  to 
sureties  long  before  the  common  law  helped  them.  Spence,  although 
at  a  loss  to  account  for  the  jurisdiction,  mentions  a  suit  brought  in 
chancery,  in  1567,  by  a  tailor,  to  recover  the  amount  due  for  clothes 
furnished.  The  suit  was  referred  to  the  queen's  tailor,  to  ascertain 
the  amount  due,  and  upon  his  report  a  decree  was  made.  The  learned 
writer  adds  that  "there  were  suits  for  wages  and  many  others  of  like 
nature."**  A  surety  who  had  no  counter  bond  filed  a  bill  against  his 
principal,  in  1632,  in  a  case  which  would  seem  to  have  been  one  of 
the  earliest  of  the  kind,  for  the  reporter,  after  stating  that  there  was 
a  decree  for  the  plaintiff",  adds  "quod  nota."'' 

The  account  just  given  of  the  promise  implied  in  fact  seems  to 

^Yelv.  40. 

*  Scott  V.  Stephenson,  i  Lev.  71,  i  Sid.  89,  s.  c.  But  see  Shepp.  Act.  on 
Cas.  (2d.  ed.)  49. 

'  2  T.  R.  100,  105. 

*  Justice  of  the  Common  Pleas,  1763-1794. 
''i  Sel.  N.  P.  (13th  ed.)  91. 

"  I  Spence,  Eq.  Jnr.  694.  "Daie  v.  Hampden  (1628),  Toth.  174.  Concern- 
ing salary  for  serving  of  a  cure." 

'  Ford  V.  Stobridge,  Nels.  Ch.  24.  In  1613.  in  Wormlington  v.  Evans.  Godb. 
243,  a  surety  was  denied  the  right  of  contribution  even  in  equity.  The  right 
was  given,  however,  early  in  the  reign  of  Charles  I.  Fleet  v.  Charnock 
(1630),  Nels.  10,  Toth.  41,  s.  c;  Parkhurst  v.  Bathurst  (1630),  Toth.  41; 
Wilcox  V.  Dunsmore  (1637),  Toth.  41.  The  first  intimation  of  a  right  to 
contribution  at  law  is  believed  to  be  the  dictum  of  Lord  Kenj'on  in  Turner 
V.  Davies  (1796),  2  Esp.  479.  The  right  to  contribution  at  law  was  estab- 
lished in  England  by  Cowcll  v.  Edwards  (1800),  2  B.  &  P.  268.  But  in  North 
Carolina,  in  1801,  a  surety  failed  because  he  proceeded  at  law  instead  of  in 
equity.    Carrington  v.  Carson,  Cam.  &  Nor.  Conf.  R.  216. 


676  APPENDIX. 

throw  much  light  upon  the  doctrine  of  "executed  consideration," 
One  who  had  incurred  a  detriment  at  the  request  of  another  by  ren- 
dering service,  or  by  becoming  a  surety  with  the  reasonable  expecta- 
tion of  compensation  or  indemnity,  was  as  fully  entitled,  in  point  of 
justice,  to  enforce  his  claim  at  law  as  one  who  had  acted  in  a  similar 
way  upon  the  faith  of  an  express  promise.  Nothing  was  wanting 
but  an  express  assumpsit  to  make  a  perfect  cause  of  action.  If  the 
defendant  saw  fit  to  make  an  express  assumpsit,  even  after  the  detri- 
ment was  incurred,  the  temptation  to  treat  this  as  removing  the 
technical  objection  to  the  plaintiff's  claim  at  law  might  be  expected 
to  be,  as  it  proved  to  be,  irresistible.^  The  already  established  practice 
of  suing  upon  a  promise  to  pay  a  precedent  debt  made  it  the  more  easy 
to  support  an  action  upon  a  promise  when  the  antecedent  act  of  the 
plaintiff  at  the  defendant's  request  did  not  create  a  strict  debt.^  To 
bring  the  new  doctrine  into  harmony  with  the  accepted  theory  of 
consideration,  the  promise  was  "coupled  with"  the  prior  request  by 
the  fiction  of  relation,^  or,  by  a  similar  fiction,  the  consideration  was 
brought  forward  or  continued  to  the  promise.*  This  fiction  doubt- 
less enabled  plaintiffs  sometimes  to  recover,  although  the  promise 
was  not  identical  with  what  would  be  implied,  and  in  some  cases 
even  where  it  would  be  impossible  to  imply  any  promise.^  But  after 
the  conception  of  a  promise  implied  in  fact  was  recognized  and  under- 
stood, these  anomaUes  gradually  disappeared,  and  the  subsequent 
promise  came  to  be  regarded  in  its  true  light  of  cogent  evidence  of 
what  the  plaintiff  deserved,  for  what  he  had  done  at  the  defendant's 
request. 

The  non-existence  of  the  promise  implied,  in  fact,  in  early  times, 
also  makes  intelligible  a  distinction  in  the  law  of  lien,  which  greatly 
puzzled  Lord  Ellenborough  and  his  colleagues.  Williams,  J.,  is 
reported  to  have  said  in  1605 :  "If  I  put  my  cloths  to  a  tailor  to 
make  up  he  may  keep  them  till  satisfaction  for  the  making.  But  if 
I  contract  with  a  tailor  that  he  shall  have  so  much  for  the  making 
of  my  apparel  he  cannot  keep  them  till  satisfaction  for  the  making."*^ 
In  the  one  case,  having  no  remedy  by  action,  he  was  allowed  a  lien 
to  prevent  intolerable  hardship.  In  the  other,  as  he  had  a  right  to 
sue  on  the  express  agreement,  it  was  not  thought  necessary  to  give 
him  the  additional  benefit  of  a  lien.^   As  soon  as  the  right  to  recover 

'^The  view  here  suggested  is  in  accordance  with  what  has  been  called,  in 
a  questioning  spirit,  the  "ingenious  explanation"  of  Professor  Langdell. 
Holmes,  Common  Law,  286.  The  general  tenor  of  this  paper  will  serve,  it  is 
hoped,  to  remove  the  doubts  of  the  learned  critic. 

^Sidenham  v.  Worlington   (1585),  2  Leon.  224. 

*  Langdell,  Contracts,  §  92. 

*  Langdell,  Contracts,  §  92;  i  Vin.  Ab.  280,  pi.  13. 
''Langdell,  Contracts,  §§  93,  94- 

"2  Roll.  Ab.  92,  pi.  I,  2.  .    ,    J 

'An  innkeeper  had  the  further  right  of  selling  a  horse  as  soon  as  it  had 

eaten  its  value,  if  there  were  no  express  contract.     For,  as  he  had  no  right 

of  action   for  its  keep,  the  horse   thereafter  was  like  a  damnosa   hcreditas. 

The   Hostler's   Case    (1605),   Yelv.   66,  67.     This   right   of   sale   disappeared 


HISTORY    OF    ASSUMPSIT.  677 

upon  an  implied  quantum  meruit  was  admitted,  the  reason  for  this 
distinction  vanished.  But  the  acquisition  of  a  new  remedy  by  action 
did  not  displace  the  old  remedy  by  lien.^  The  old  rule,  expressed, 
however,  in  the  new  form  of  a  distinction  between  an  express  and 
an  implied  contract,  survived  to  the  present  century.-  At  length,  in 
1816,  the  judges  of  the  King's  Bench,  unable  to  see  any  reason  in 
the  distinction,  and  unconscious  of  its  origin,  declared  the  old  dicta 
erroneous,  and  allowed  a  miller  his  lien  in  the  case  of  an  express 
contract.^ 

The  career  of  the  agistor's  lien  is  also  interesting.  That  such  a 
lien  existed  before  the  days  of  implied  contracts  is  intrinsically  prob- 
able, and  is  also  indicated  by  several  of  the  books.'*  But  in  Chapman 
V.  Allen"  (1632),  the  first  reported  decision  involving  the  agistor's 
right  of  detainer,  there  happened  to  be  an  express  contract,  and  the 
lien  was  accordingly  disallowed.  When  a  similar  case  arose  two 
centuries  later  in  Jackson  v.  Cummins, "^  this  precedent  was  deemed 
controlling,  and,  as  the  old  distinction  between  express  and  implied 
contracts  was  no  longer  recognized,  the  agistor  ceased  to  have  a  lien 
in  any  case.  Thus  was  established  the  modern  and  artificial  dis- 
tinction in  the  law  of  lien  between  bailees  for  agistment  and  "bailees 
who  spend  their  labor  and  skill  in  the  improvement  of  the  chattels" 
delivered  to  them.'^ 

The  value  of  the  discovery  of  the  implied  promise  in  fact  was  ex- 
emplified further  in  the  case  of  a  parol  submission  to  an  award.  If 
the  arbitrators  awarded  the  payment  of  a  sum  of  money,  the  money 
was  recoverable  in  debt,  since  an  award,  after  the  analogy  of  a  judg- 
ment, created  a  debt.  But  if  the  award  was  for  the  performance  of 
a  collateral  act,  as,  for  example,  the  execution  of  a  release,  there  was, 
originally,  no  mode  of  compelling  compliance  with  the  award,  unless 
the  parties  expressly  promised  to  abide  by  the  decision  of  the  ar- 
bitrators.   Tilford  V.  French**   (1663)  is  a  case  in  point.    So,  also, 

afterwards  with  the  reason  upon  which  it  was  founded.  Jones  v.  Pearle, 
I  Stra.  556. 

^"And  it  was  resolved  that  an  innkeeper  may  detain  a  horse  for  his  feed- 
ing, and  yet  he  may  have  an  action  on  the  case  for  the  meat."  Watbrooke  v. 
Griffith   (1609),  Moore    876,  S77,  2  Brownl.  254.  s.  c. 

^Chapman  v.  Allen,  Cro.  Car.  271;  Collins  v.  Ongly,  Selw.  N.  P.  (13th  ed.) 
1312,  n.  (x),  per  Lord  Holt;  Brennan  v.  Currint  (1755),  Say.  224,  Buller,  N. 
P.  (7th  ed.),  45,  n.  (c)  ;  Cowell  v.  Simpson,  16  Ves.  275,  281,  per  Lord 
Eldon ;  Scarfe  v.  Morgan,  4  M.  &  W.  270,  283,  per  Parke,  B. 

^  Chase  v.  Westmore,  5  M.  &  Sel.  180. 

*2  Roll.  Ab.  85,  pi.  4  (1604)  ;  Mackerney  v.  Erwin  (1628),  Hutt.  loi ;  Chap- 
man V.  Allen  (1632),  2  Roll.  Ab.  92,  pi.  6,  Cro.  Car.  271,  s.  c.  See,  also,  Bro. 
Ab.   Distresse,  67. 

*2  Roll.  Ab.  92,  pi.  6,  Cro.  Car.  271,  s.  c. 

« 5  M.  &  W.  342. 

'The  agistor  has  a  lien  by  the  Scotch  law.  Schouler  Bailments  (2d  ed.), 
§  122. 

*i  Lev.  113;  I  Sid.  160;  I  Keb.  599,  635.  To  the  same  effect.  Penruddock 
V.  Monteagle  (1612),  i  Roll.  Ab.  7,  pi.  3;  Browne  v.  Downing  (1620),  2  Roll. 
R.  194;  Read  v.  Palmer  (1648),  Al.  69,  70. 


678  APPENDIX. 

seven  years  later,  "it  was  said  by  Twisden,  J.,  that  if  two  submit  to 
an  award  this  contains  not  a  reciprocal  promise  to  perform ;  but  there 
must  be  an  express  promise  to  ground  an  action  upon."^  This  doc- 
trine was  abandoned  by  the  time  of  Lord  Holt,  who,  after  referring 
to  the  ancient  rule,  said :  "But  the  contrary  has  been  held  since ;  for 
if  two  men  submit  to  the  award  of  a  third  person  they  do  also 
thereby  promise  expressly  to  abide  by  his  determination,  for  agree- 
ing to  refer  is  a  promise  in  itself."' 

In  the  cases  already  considered  the  innovation  of  assumpsit  upon 
a  promise  implied  in  fact  gave  a  remedy  by  action,  where  none  ex- 
isted before.  In  several  oth>.i  cases  the  action  upon  such  a  promise 
furnished  not  a  new,  but  a  concurrent  remedy.  Assumpsit,  as  we 
have  seen,^  was  allowed,  in  the  time  of  Charles  I.,  in  competition  with 
Detinue  and  Case  against  a  bailee  for  custody.  At  a  later  period 
Lord  Holt  suggested  that  one  might  "turn  an  action  against  a  com- 
mon carrier  into  a  special  assumpsit  (which  the  law  implies)  in  re- 
spect of  his  hire."'*  Dale  v.  HalP  (1750)  is  understood  to  have  been 
the  first  reported  case  in  which  that  suggestion  was  followed.  As- 
sumpsit could  also  be  brought  against  an  innkeeper.** 

Account  was  originally  the  sole  form  of  action  against  a  factor  or 
baihfif.  But  in  Wilkins  v.  Wilkins^  (1689),  three  of  the  judges  fa- 
vored an  action  of  assumpsit  against  a  factor  because  the  action  was 
brought  upon  an  express  promise,  and  not  upon  a  promise  by  impli- 
cation. Lord  Holt,  however,  in  the  same  case,  attached  no  import- 
ance to  the  distinction  between  an  express  and  an  implied  promise, 
remarking  that  "there  is  no  case  where  a  man  acts  as  bailiff,  but  he 
promises  to  render  an  account."®  The  requisite  of  an  express  prom- 
ise was  heard  of  no  more.  Assumpsit  became  theoretically  concur- 
rent with  account  against  a  bailiff  or  factor  in  all  cases,  although 
by  reason  of  the  competing  jurisdiction  of  equity,  actions  at  common 
law  were  rare.'' 

In  the  early  cases  of  bills  and  notes  the  holders  declared  in  an  ac- 
tion on  the  case  upon  the  custom  of  merchants.  "Afterwards  they 
came  to  declare  upon  an  assiimpsit."'^^ 

It  remains  to  consider  the  development  of  indehitatus  assumpsit 
as  a  remedy  upon  quasi-contracts,  or,  as  they  have  been  commonly 

^Anon.,  I  Vent.  69. 

^Squire  v.  Grevell  (1703),  6  Mod.  34,  35.  See  similar  statements  by  Lord 
Holt  in  Allen  v.  Harris  (1695),  i  Ld.  Ray.  122;  Freeman  v.  Barnard  (1696), 
I  Ld.  Ray.  248;  Purslow  v.  Baily  (1704),  2  Ld.  Ray.  1439,  6  Mod.  221,  s.  c; 
Lupart  V.  Welson   (1708),  11  Mod.  171. 

^  Supra,  pp.  658-9. 

^  Comb.  334. 

"  I  Wils.  281.     See,  also,  Brown  v.  Dixon,  i  T.  R.  274,  per  Buller,  J. 

•  Morgan  v.  Ravey,  6  H.  &  N.  265.    But  see  Stanley  v.  Bircher,  78  Mo.  245. 

'Carth.  89;  I  Salk.  9,  Holt.  6,  s.  c. 

'But  in  Spurravvay  v.  Rogers  (1700)  Lord  Holt  is  reported  as  allowing  as- 
sumpsit against  a  factor  only  upon  his  express  promise. 

•Tompkins  v.  Willsbaer.  5  ^1  aunt.  430. 

"Milton's  Case  (1668),  Hard.  485,  per  Lord  Hale. 


HISTORY    OF    ASSUMPSIT.  6/9 

called,  contracts  implied  in  law.  The  contract  implied  in  fact,  as 
we  have  seen,  is  a  true  contract.  But  the  obligation  created  by  law 
is  no  contract  at  all.  Neither  mutual  assent  nor  consideration  is  es- 
sential to  its  validity.  It  is  enforced  regardless  of  the  intention  of 
the  obligor.  It  resembles  the  true  contract,  however,  in  one  im- 
portant particular.  The  duty  of  the  obligor  is  a  positive  one,  that  is, 
to  act.  In  this  respect  they  both  differ  from  obligations,  the  breach 
of  which  constitutes  a  tort,  where  the  duty  is  negative,  that  is,  to 
forbear.  Inasmuch  as  it  has  been  customary  to  regard  all  obliga- 
tions as  arising  either  ex  contractu  or  ex  delicto,  it  is  readily  seen 
why  obligations  created  by  law  should  have  been  treated  as  contracts. 
These  constructive  duties  are  more  aptly  defined  in  the  Roman  law 
as  obligations  quasi  ex  contractu  than  by  our  ambiguous  "implied 
contracts."^ 

Quasi-contracts  are  founded  (i)  upon  a  record;  (2)  upon  a  statu- 
tory, official,  or  customary  duty,  or  (3)  upon  the  fundamental  prin- 
ciple of  justice  that  no  one  ought  unjustly  to  enrich  himself  at  the 
expense  of  another. 

As  assumpsit  cannot  be  brought  upon  a  record,  the  first  class  of 
quasi-contracts  need  not  be  considered  here.  Many  of  the  statutory, 
official,  or  customary  duties,  also,  e.  g.,  the  duty  of  the  innkeeper  to 
entertain,-  of  the  carrier  to  carry, ^  of  the  smith  to  shoe,'*  of  the  chap- 
lain to  read  prayers,  of  the  rector  to  keep  the  rectory  in  repair,'^  of 
the  Udei-comniiss  to  maintain  the  estate,*'  of  the  finder  to  keep  with 
care,^  of  the  sheriff  and  other  officers  to  perform  the  functions  of 
their  office,^  of  the  shipowner  to  keep  medicines  on  his  sliip,^  and  the 
like,  which  are  enforced  by  an  action  on  the  case,  are  beyond  the 
scope  of  this  essay,  since  indebitatus  assumpsit  lies  only  where  the 
duty  is  to  pay  money  or  a  definite  amount  of  chattels.  For  the  same 
reason  we  are  not  concerned  here  with  a  large  class  of  duties  grow- 
ing out  of  the  principle  of  unjust  enrichment,  namely,  constructive 
or  quasi  trusts,  w'hich  are  enforced,  of  course,  only  in  equity. 

Debt  was  originally  the  remedy  for  the  enforcement  of  a  statutory 
or  customary  duty  for  the  payment  of  money.  The  right  to  sue  in 
indebitatus  assumpsit  was  gained  only  after  a  struggle.  The  as- 
snmpsit  in  such  cases  was  a  pure  fiction.  These  cases  w-ere  not, 
therefore,  within  the  principle  of  Slade's  case,  w^hich  required,  as  we 
have  seen,^**  a  genuine  agreement.  The  authorities  leave  no  room 
for  doubt  upon  this  point,  although  it  is  a  common  opinion  that,  from 

^  In  Finch,  Law,  150,  they  are  called  "as  it  were"  contracts. 

"Keil.  50,  pi.  4. 

'Jackson  v.  Rogers,  2  Show.  327;  Anon.,  12  Mod.  3. 

*  Stcinson  v.  Heath,  3  Lev.  4CO; 
^  Bryan  v.  Clay,  i  E.  &  B.  38. 

*  Batthyany  v.  Walford,  36  Ch.  Div.  269. 
'Story,  Bailments  (Sth  ed.),  §§  85-87. 
*3  Bl.  Com.  165. 

*  Couch  V.  Steel,  3  E.  &  B.  402.  But  see  Atkinson  v.  Newcastle  Co.,  2  Ex. 
Div.  441. 

^"Sitpra,  pp.  671-2. 


68o  APPENDIX. 

the  time  of  that  case,  indebitatus  assumpsit  was  concurrent  with  debt 
in  all  cases,  unless  the  debt  was  due  by  record,  specialty,  or  for  rent. 
The  earliest  reported  case  of  indebitatus  assumpsit  upon  a  cus- 
tomary duty  seems  to  be  City  of  London  v.  Goree,^  decided  seventy 
years  later  than  Slade's  case.  "Assumpsit  for  money  due  by  custom 
for  scavage.  Upon  non-assumpsit  the  jury  found  the  duty  to  be  due, 
but  that  no  promise  was  expressly  made.  And  whether  assumpsit 
lies  for  this  money  thus  due  by  custom,  without  express  promise, 
was  the  question.  Resolved  it  does."  On  the  authority  of  that  case 
an  officer  of  a  corporation  was  charged  in  assumpsit,  three  years 
later,  for  money  forfeited  under  a  by-law.^  So,  also,  in  1688,  a  copy- 
holder was  held  liable  in  this  form  of  action  for  a  customary  fine 
due  on  the  death  of  the  lord,  although  it  was  objected  "that  no  in- 
debitatus assumpsit  lieth  where  the  cause  of  action  is  grounded  on  a 
custom."^  Lord  Holt  had  not  regarded  these  extensions  of  indebi- 
tatus assumpsit  with  favor.*  Accordingly,  in  York  v.  Toun,^  when 
the  defendant  urged  that  such  an  action  would  not  lie  for  a  fine  im- 
posed for  not  holding  the  office  of  sheriff,  "for  how  can  there  be 
any  privity  of  assent  implied  when  a  fine  is  imposed  on  a  man  against 
his  will?"  the  learned  judge  replied:  "We  will  consider  very  well 
of  this  matter ;  it  is  time  to  have  these  actions  redressed.  It  is  hard 
that  customs,  by-laws,  rights  to  impose  fines,  charters,  and  every- 
thing should  be  left  to  a  jury."  By  another  report  of  the  same  case^ 
"Holt  seemed  to  incline  for  the  defendant.  *  *  *  And  upon 
motion  of  the  plaintiff's  counsel,  that  it  might  stay  till  the  next  term. 
Holt,  C.  J.,  said  that  it  should  stay  till  dooms-day  with  all  his  heart ; 
but  RoKESBY,  J.,  seemed  to  be  of  opinion  that  the  action  would  lie. — 
Et  adjournatur.  Note. — A  day  or  two  after  I  met  the  Lord  Chief 
Justice  Treby  visiting  the  Lord  Chief  Justice  Holt  at  his  house, 
and  Holt  repeated  the  said  case  to  him,  as  a  new  attempt  to  extend 
the  indebitatus  assumpsit,  which  had  been  too  much  encouraged  al- 
ready, and  Treby,  C.  J.,  seemed  also  to  be  of  the  same  opinion  with 
Holt."  But  Rokesby's  opinion  finally  prevailed.  The  new  action 
continued  to  be  encouraged.  Assumpsit  was  allowed  upon  a  foreign 
judgment  in  1705,'^  and  the  "metaphysical  notion"^  of  a  promise  im- 
plied in  law  became  fixed  in  our  law. 

^2  Lev.  174,  I  Vent.  298;  3  Keb.  677,  Freem.  433,  s.  c. 

*  Barber  Surgeons  v.  Pelson  (1676),  2  Lev.  252.  To  the  same  efifect,  Mayor 
v.  Hunt  (1681),  2  Lev.  37,  Assumpsit  for  weighage ;  Duppa  v.  Gerard  (1688), 
I  Show.  78,  Assumpsit  for  fees  of  knighthood;  Tobacco  Co.  v.  Loder,  16 
Q.  B.  765. 

'  Shuttlcvvorth  v.  Garrett,  Comb.  151,  i  Show.  35,  Carth.  90,  3  Mod.  240,  3 
Lev.  261,  s.  c. 

■*  In  Smith  v.  Airey,  6  Mod.  128,  129,  he  said:  "An  indebitatus  has  been 
brought  for  a  tenant  right  fine,  which  I  could  never  digest."  See,  also.  Anon. 
Farresly,  12. 

°  5  Mod.  444. 

*  I  Ld.  Ray.  502. 

^  Dupleix  v.  DeRover,  2  Vern.  540. 

*  Starke  v.  Cheesman,  i  Ld.  Ray.  538. 


HISTORY    OF    ASSUMPSIT.  681 

The  equitable  principle  which  lies  at  the  foundation  of  the  great 
bulk  of  quasi-contracts,  namely,  that  one  person  shall  not  unjustly 
enrich  himself  at  the  expense  of  another,  has  established  itself  very 
gradually  in  the  common  law.  Indeed,  one  seeks  in  vain  to-day  in 
the  treatises  upon  the  law  of  contract  for  an  adequate  account  of  the 
nature,  importance,  and  numerous  applications  of  this  principle.^ 

The  most  fruitful  manifestations  of  this  doctrine  in  the  early  law 
are  to  be  found  in  the  action  of  account.  One  who  received  money 
from  another  to  be  applied  in  a  particular  way  was  bound  to  give 
an  account  of  his  stewardship.  If  he  fulfilled  his  commission,  a  plea 
to  that  effect  would  be  a  valid  discharge.  If  he  failed  for  any  reason 
to  apply  the  money  in  the  mode  directed  the  auditors  would  find  that 
the  amount  received  was  due  to  the  plaintiff,  who  would  have  a  judg- 
ment for  its  recovery.  If,  for  example,  the  money  was  to  be  applied 
in  payment  of  a  debt  erroneously  supposed  to  be  due  from  the 
plaintiff  to  the  defendant,  either  because  of  a  mutual  mistake  or  be- 
cause of  fraudulent  representations  of  the  defendant,  the  intended 
application  of  the  money  being  impossible,  the  plaintiff  would  re- 
cover the  money  in  account.^  Debt  would  also  lie  in  such  cases,  since, 
at  an  early  period,  debt  became  concurrent  with  account,  when  the 
object  of  the  action  was  to  recover  the  precise  amount  received  by 
the  defendant.^  By  means  of  the  fiction  of  a  promise  implied  in  law 
indebitatus  assimipsit  became  concurrent  with  debt,  and  thus  was 
established  the  familiar  action  of  assumpsit  for  money  had  and  re- 
ceived to  recover  money  paid  to  the  defendant  by  mistake.  Bonnel 
V.  Fowke*  (1657),  is,  perhaps,  the  first  action  of  the  kind.-'"' 

Although  assumpsit  for  money  had  and  received  was  in  its  in- 
fancy merely  a  substitute  for  account,  it  gradually  outgrew  the  limits 
of  that  action.  Thus,  if  one  was  induced  by  fraudulent  representa- 
tions to  buy  property,  the  purchase  money  could  not  be  recovered 
from  the  fraudulent  vendor  by  the  action  of  account.  For  a  time, 
also,  indebitatus  assmnpsit  would  not  lie  in  such  a  case.  Lord  Holt 
said  in  1696:  "But  w^here  there  is  a  bargain,  though  a  corrupt  one, 
or  where  one  sells  goods  that  were  not  his  own,  I  will  never  allow 
an  indebitatus."*^  His  successors,  however,  allowed  the  action.  Simi- 
larly, account  was  not  admissible  for  the  recovery  of  money  paid 
for  a  promise  which  the  defendant  refused  to  perform.     Here,  too, 

^  Professor  Keener  published  his  Cases  in  Quasi-Contracts  in  1888,  and  fol- 
lowed it,  in  1893,  with  his  admirable  treatise  on  the  same  subject. 

"Hewer  v.  Bartholomew  (1597),  Cro.  El.  614;  Anon.  (1696),  Comb.  447; 
Cavendish  v.  Middleton,  Cro.  Car.  141,  W.  Jones,  196,  s.  c. 

^Lincoln  v.  Topliff  (1597).  Cro.  El.  644. 

*2  Sid.  4.  To  the  same  effect,  Martin  v.  Sitwell  (1690),  i  Show.  156,  Holt, 
25;  Newdigate  v.  Dary  (1692),  i  Ld.  Ray.  742;  Palmer  v.  Staveley  (1700), 
12  Mod.  510. 

Mn  Mead  v.  Death  (1700),  i  Ld.  Ray.  742,  however,  one  who  paid  money 
under  a  judgment  was  not  allowed  to  recover  it,  although  the  judgment  was 
afterwards  reversed.  The  rule  to-day  is,  of  course,  otherwise.  Keener  Quasi- 
Contracts,  417. 

"Anon.,  Comb.  447. 


682  APPENDIX 

debt  and  indebitatus  assumpsit  did  not  at  once  transcend  the  bounds 
of  the  parent  action.^  But  in  1794  Lord  Holt  reluctantly  declined 
to  non-suit  a  plaintiff  who  had  in  such  a  case  declared  in  indebitatus 
assumpsit.-  Again,  account  could  not  be  brought  for  money  acquired 
by  a  tort,  for  example,  by  a  disseisin  and  collection  of  rents  or  a  con- 
version and  sale  of  a  chattel.^  It  was  decided,  accordingly,  in  Phil- 
lips V.  Thompson*  (1675),  that  assumpsit  would  not  lie  for  the  pro- 
ceeds of  a  conversion.  But  in  the  following  year  the  usurper  of  an 
office  was  charged  in  assumpsit  for  the  profits  of  the  office,  no  objec- 
tion being  taken  to  the  form  of  action. °  Objection  was  made  in  a 
similar  case  in  1677,  that  there  was  no  privity  and  no  contract ;  but 
the  court,  in  disregard  of  all  the  precedents  of  account,  answered : 
"An  indebitatus  assumpsit  will  lie  for  rents  received  by  one  who 
pretends  a  title ;  for  in  such  cases  an  account  will  lie.  Wherever  the 
plaintiff  may  have  an  account  an  indebitatus  will  lie."*^  These  prece- 
dents were  deemed  conclusive  in  Howard  v.  Wood^  (1678),  but 
Lord  ScROGGS  remarked :  "If  this  were  now  an  original  case,  we  are 
agreed  it  would  by  no  means  lie."  Assumpsit  soon  became  concur- 
rent with  trover,  where  the  goods  had  been  sold.^  Finally  under  the 
influence  of  Lord  Mansfield  the  action  was  so  much  encouraged 
that  it  became  almost  the  universal  remedy  where  a  defendant  had 
received  money  which  he  was  "obliged  by  the  ties  of  natural  justice 
and  equity  to  refund."^ 

But  one  is  often  bound  by  those  same  ties  of  justice  and  equity  to 
pay  for  an  unjust  enrichment  enjoyed  at  the  expense  of  another, 
although  no  money  has  been  received.  The  quasi-contractual  lia- 
bility to  make  restitution  is  the  same  in  reason,  whether,  for  example, 
one  who  has  converted  another's  goods  turns  them  into  money  or 
consumes  them.  Nor  is  any  distinction  drawn,  in  general,  between 
the  two  cases.  In  both  of  them  the  claim  for  the  amount  of  the 
unjust  enrichment  would  be  provable  in  the  bankruptcy  of  the 
wrong-doer  as  an  equitable  debt,^*'  and  would  survive  against  his  rep- 
resentative.^^ Nevertheless  the  value  of  the  goods  consumed  was 
never  recoverable  in  indebitatus  assumpsit.     There  was  a  certain 

*  Brig's  Case  (1623),  Palm,  364;  Dewbery  v.  Chapman  (1695),  Holt,  35; 
Anon.   (1696),  Comb.  447. 

"Holmes  v.  Hall,  6  Mod.  161,  Holt,  36,  s.  c.  See,  also,  Dutch  v.  Warren 
(1720),  I  Stra.  406,  2  Burr.  loio,  s.  c.;  Anon.,  i  Stra.  407. 

"Tottenham  v.  Bedingficld  (1572),  Dal.  99,  3  Leon.  24,  0\v.  35,  <S3,  s.c. 
Accordingly,  an  account  of  the  profits  of  a  tort  cannot  be  obtained  in  equity 
to-day  except  as  an  incident  to  an  injunction. 

*3  Lev.  191. 

"Woodward  v.  Aston,  2  Mod.  95. 

"  Arris  v.  Stukelcy,  2  Mod.  260. 

^  2  Show.  23,  2  Lev.  245,  Frcem.  473,  478,  T.  Jones  126  s.  c. 

'Jacob  V.  Allen  (1703),  i  Salk.  27;  Lamine  v.  Dorell  (1705),  2  Ld.  Ray, 
I2i6.  Phillips  V.  Thompson,  sufra,  was  overruled  in  Hitchins  v.  Campbell, 
2  W.  Bl.  827. 

'  Moses  V.  Macferlan,  2  Burr.  1005,  1012. 

"  Exp.  Adams,  8  Ch.  Div.  807,  819. 

"  Phillips  V.  Homfray,  24  Ch.  Div.  439. 


HISTORY    OF   ASSUMPSIT.  683 

plausibility  in  the  fiction  by  which  money  acquired  as  the  fruit  of  mis- 
conduct was  treated  as  money  received  to  the  use  of  the  party 
wronged.  But  the  difference  between  a  sale  and  a  tort  was  too  radi- 
cal to  permit  the  use  of  assumpsit  for  goods  sold  and  delivered 
where  the  defendant  had  wrongfully  consumed  the  plaintiff's  chat- 
tels.i 

The  same  difficulty  was  not  felt  in  regard  to  the  quasi-contractual 
claim  for  the  value  of  services  rendered.  The  averment  in  the  count 
in  assumpsit  of  an  indebtedness  for  work  and  labor  was  proved, 
even  though  the  work  was  done  by  the  plaintiff  or  his  servants  un- 
der the  compulsion  of  the  defendant.  Accordingly,  a  defendant,  who 
enticed  away  the  plaintiff's  apprentice  and  employed  him  as  a  mari- 
ner, was  charged  in  this  form  of  action  for  the  value  of  the  appren- 
tice's services. - 

By  a  similar  reasoning  assumpsit  for  use  and  occupation  would  be 
admissible  for  the  benefit  received  from  a  wrongful  occupation  of 
the  plaintiff's  land.  But  this  count,  for  special  reasons  connected 
with  the  nature  of  rent,  was  not  allowed  upon  a  quasi-contract." 

In  assumpsit  for  money  paid,  the  plaintiff  must  make  out  a  pay- 
ment at  the  defendant's  request.  This  circumstance  prevented  for 
a  long  time  the  use  of  this  count  in  the  case  of  quasi-contracts.  To- 
wards the  end  of  the  last  century,  however,  the  difficulty  was  over- 
come by  the  convenient  fiction  that  the  law  would  imply  a  request 
whenever  the  plaintiff  paid,  under  legal  compulsion,  what  the  de- 
fendant was  legally  compelled  to  pay.* 

The  main  outlines  of  the  history  of  assumpsit  have  now  been  in- 
dicated. In  its  origin  an  action  of  tort,  it  was  soon  transformed 
into  an  action  of  contract,  becoming  afterwards  a  remedy  where 
there  was  neither  tort  nor  contract.  Based  at  first  only  upon  an  ex- 
press promise,  it  w^as  afterwards  supported  upon  an  implied  promise, 
and  even  upon  a  fictitious  promise.  Introduced  as  a  special  mani- 
festation of  the  action  on  the  case,  it  soon  acquired  the  dignity  of  a 
distinct  form  of  action,  which  superseded  debt,  became  concurrent 
with  account,  with  case  upon  a  bailment,  a  w'arranty,  and  bills  of  ex- 
change, and  competed  with  equity  in  the  case  of  the  essentially  equit- 
able quasi-contracts  growing  out  of  the  principle  of  unjust  enrich- 
ment. Surely  it  would  be  hard  to  find  a  better  illustration  of  the 
flexibility  and  power  of  self-development  of  the  common  law. 

This  statement  is  too  sweeping.  The  authorities  are  divided  on  the  qnes- 
tion.     See  Keener,  Quasi-Contracts,  192-195. 

"Lightly  V.  Clouston,  i  Taunt.  112.     See,  also,  Gray  v.  Hill,  Ry.  &  M.  420. 

"But  see  Mayor  v.  Sanders,  3  B.  &•  Ad.  411. 

*  Turner  v.  Davies  (1796),  2  Esp.  476;  Cowell  v.  Edwards  (1800),  2  B.  & 
P.  268;  Craythorne  v.  Swinburne  (1807),  14  Ves.  160,  164;  Exall  v.  Part- 
ridge (1799),  8  T.  R.  30a 


INDEX 


Account  PAGE. 

credit  under  mistake  as  to  ac- 
count 241 
payment  under  mistake  as  to 
account  240 
Action,  money  paid  to  prevent 

526-530 
Administrator,  See  Executor. 

Agent 

recovery    by     principal     from 
agent    of    consideration    re- 
ceived upon  illegal  transac- 
tion 226-238 
recovery  from  agent  for  serv- 
ices   rendered    to    principal 
upon    supposed    lawful    de- 
mand of  agent  58 
recovery    from    principal    for 
benefits      conferred      under 
mistake    as    to    agent's    au- 
thority                               389-403 
Alteration  of  position  of  one  paid 

by  mistake  271-290,  293,  296 

Ambiguity,  benefits   conferred  un- 
der  ambiguous   contract  328 
Assessments,  See  Taxes. 
Assumpsit 

against  common  carriers  14 

against  innkeepers  17 

for  breach  of  official  duty  13 

for  breach  of  statutory  duty      9 
for  use  and  occupation 

400,  625-631 
history  of  653-683 

upon  a  judgment  i 

See  also  Waiver  of  Tort. 

Attachment,    recovery    of    money 
extorted  by  abuse  of  528,  530 


Bail  bond,  See  Recognizance. 
Bailee,  preservation  of  property 

by  39-42 

Banks 

negotiable    paper    issued    ille- 
gally I)y  206,  443 
payment  by  mistake  as  to  cus- 
tomer's   account              275,   384 
payment  by  mistake  as  to  gen- 
uineness of  drawer's  signa- 
ture 370-378 
payment     by     mistake     as     to 

genuineness  of  indorsement  379 
recovery    of   usurious    interest 
from  national  bank  514 

Bastardy,     compromise     of     claim 

under  mistake  as  to  pregnancy  251 
Belief  as  affecting  mistake  256-264 
Benefits  conferred 

by  request,  but  without  con- 
tract 54 
incidentally                                     51 
under  a   supposed  contract 

71,  315 
without  request  24 

Bill  of  exchange.  See  Negotiable 

Instruments,  Drawee. 
Breach  of  contract 

recovery  back  of  money  paid 

to  defendant  in  default  166,  168 
recovery      for      goods      sold, 
against   a    defendant   in    de- 
fault 157,  161 
recovery    for    goods    sold,    by 

plaintiff  in  default  144,  148,  151 
recovery  for  services  against  a 
defendant  in  default 

153.  155,  157.  163,  164 


685 


686 


INDEX. 


Breach  of  contract,  continued      page. 

recovery      for      services,      by 

plaintiff  in  default         122,  124, 

126,  133,  134,  136,  142,  143 

Burial  expenses,  liability  for      28,  30 

Business,  recovery  of  money  paid 

to  prevent  injury  to  482-490 

Carriers,  See  Common  Carriers. 
Charity,  See  Gratuity. 
Check,  See  Drawee. 
Child,  See  Parent  and  Child,  In- 
fants. 
Cloud  on  title,  money  paid  to  pre- 
vent or  remove  567-571 
Cohabitation,  recovery  for  services 

rendered  during  illicit  6t, 

Common  carriers 

duress  by  492,  498-506 

payment  of  excess  charge  to, 
by  mistake  of  collateral 
fact  243 

recovery    against,    for    breach 

of  customary  duty  14 

recovery  against,  of  excessive 

rates  498-506 

recovery  against,  of  consider- 
ation where  performance 
impossible  200-205 

recovery  by,  of  freight  pro 
rata  190 

Compounding    a    felony,    recovery 

of  money  paid  for        226,  524,  525 
Composition    with    creditors,    du- 
ress in  485-490 
Compromise  and  mistake,  payment 

by  248-256,  411 

Compulsion  of  law  526-578 

Constraint,     payment     under,     by 
fault  of  defendant  445-469 

See  also  Compulsion  of  Law, 
Duress. 
Contract 

implied    contracts   distin- 
guished 19 
meaning  as  used  in  statutes        5 
recovery    for   benefits    con- 
ferred where  a  contract  is 
affected  by  breach           122-168 


Contract,  continued  page. 

impossibility    of    perform- 
ance 169-205 
illegality                                206-239 
incapacity  of  parties  71-90 
mistake                   315-341,  354^402 
statute  of  frauds                   90-122 
true    contract    and    quasi-con- 
tract distinguished  19 
waiver    of    tortious    interfer- 
ence with                                  635 
Contribution 

as   between    contractors     451-461 
as  between  tortfeasors       461-469 
Conversion 

recovery  against   innocent   re- 
ceiver 610-622 
waiver  of                     579-587,  631 
Corporations,  recovery  against 
for  benefits  conferred  under 

promoter's   contract         324-326 
for    benefits    conferred    under 

ultra  vires  contracts  77,  214,  217 
See  also  Municipal  Corpora- 
tions, Public  Service 
c0rp0r.-\ti0ns. 
Co-tenant 

liability   for   improvements         45 
liability  for  repairs  43 

Credit,  mistake  in  allowing  241 

Creditor,  payment  to,  by  executor 
under  mistake  as  to  solvency  of 
debtor's  estate  270»,  283,  285 

Creditors,  composition  with,  af- 
fected by  duress  485-490 

Customary  duty,  recovery  upon  14,  17 

Debt,  action  of 

on  a  judgment  i 

on  a  recognizance  6 

on  a  statutory  liability  9 

on  an  official  liability  12 

Demand,  necessity  of 

before  recovery  of  money  paid 

on  an  illegal  contract  211 

before  recovery  of  money  paid 
under  mistake  300-305 


INDEX. 


687 


Drawee  page. 

payment  by,  under  mistake  as 
to  genuineness  of  drawer's 
signature  370~379 

payment  by,  under  mistake  as 
to  genuineness  of  indorser's 
signature  379 

payment    by    one    mistakenly 
supposing  himself  the 
drawee  298  n. 

Duress 

by  common  carrier  and  public 
service  corporations    472H,  475, 
498-508 
by  injury  to  business  482-490 

by  public  officers  490-498 

composition  with  creditors  af- 
fected by  485-490 
in  paying  usurious  interest      509 
of  person  5i5~526 
of  personal  property          469-479 
of  real  property  479-481,  565-571 
See  also  Compulsion  of  Law, 
Constraint. 

Election   of  remedy,   See  Waiver 

of  Tort. 
Equity,   relation    of   quasi-contract 

to  640-652 

Ex    contractu    includes   quasi-con- 
tract 1 
Execution   creditor 

liability  to  purchaser  at  sale    33 
payment  to,  by  sheriff,  under 
mistake  264,  271 

Execution  debtor,  liability  to  pur- 
chaser at  sale  33 
Executor 

liability  for  burial  expenses       28 
liability    of    estate    for    unau- 
thorized loan  to  399.  n. 
payment  by,  under  mistake  of 

law  409,  415 

payment    of    counsel    fees    to 

support  invalid  will  268  n. 

payment  to  creditor  under 
mistake  as  to  solvency  of 
estate  270  n.,  283,  285 


Executor,  continued  pace. 

payment  to  legatee  under  mis- 
take of  fact  287 
False  imprisonment,  waiver  of 

587,  633 
Family  relation,  services  rendered 

in  the  61 

Fees 

extortion  of  by  officers       490-498 
statutory  liability  to  pay  10 

Foreign  law,  mistake  as  to     441-444 
Forgery 

of   indorsement   on  negotiable 

instrument  290,  379 

of    maker's    name    on    negoti- 
able instrument 

370-378,  381  «.,  382 
Forgetfulness  as  affecting  mistake  258 
Fraud 

money  procured  by  fraud  and 
passed    to    innocent    holder 

280,  610,  616 
waiver  of  588,  604-610 

Frauds,  Statute  of 

acquiring    title    under    a    con- 
tract unenforceable  by  114,  116 
action    on    the    unenforceable 
contract    and    in    quasi-con- 
tract distinguished  117 
defendant   in   default   on   con- 
tract unenforceable  by 
measure  of  recovery 

against  him  105  ». 

recovery    against     him     for 

goods  sold  104 

recovery    against     him     for 

services  105  n.,  108-110 

recovery     against     him     for 

land  sold  105,  106 

recovery    by    him    for    im- 
provements to  land      118-121 
specific   performance   and 
quasi-contract   as   rem- 
edies against  107  v. 
plaintiff  in  default  on  contract 
unenforceable  by 
recovery  by  him   for  goods 
sold  95 


688 


INDEX. 


Frauds,  Statute  of,  continued        page. 
recovery    by    him     for    im- 
provements to  land      101-103 
recovery  by  him  for  services 

94,  97,  100  n. 
recovery  by   him   of   money 
paid  90,  100 

Funeral  expenses,  See  Burial. 

Gas  company,  recovery  back  of 
excessive  rates  from  506 

Gift,  See  Gratuity. 

Goods  supplied  without  request       26 

Gratuitous  services,  without  re- 
quest 24-26 

Gratuity  conferred  under  mis- 
take 306-315 

Heir,   payment  to,  by  mistake   of 

law  409,  415 

Husband  and  wife 

liability  of  husband  for  funeral 

expenses  28,  30 

recovery  for  benefits  conferred 
under  married  woman's  con- 
tract 73 
recovery  for  services  rendered 
during  supposed  relation  of  313 
See  also  Marriage. 
Ignorance  of  law  and  mistake  of 

law  distinguished  417 

Illegal  contracts,  recovery  of  con- 
sideration given  in  performance 
of  206-239 

Illness,  recovery  for  services  when 
full  performance  prevented  by 

185,  189 
Implied   contracts   distinguished       19 
Impossibility    of    performance    of 
contract 

recovery      against      defendant 
who  fails  to  perform  191, 

193,  195 
recovery  by  plaintiff  who  fails 
to  perform  169,  175,  180, 

185,  189 
Improvements 

liability  of  tenant  in  common     45 


Improvements,  continued  page. 

put  by  mistake  on  the  land  of 

another  346-349 

put  by  mistake  on  the  personal 

property  of  another  350 

put  by  mistake   on  the  prop- 
erty of   another  342-354 
recovery     against      defaulting 
vendor,   when    made   pursu- 
ant to  contract   unenforcea- 
ble by  Statute  of  Frauds       112 
recovery      against      defaulting 
vendor,  by  vendee  in  posses- 
sion   under    contract    unen- 
forceable     by      Statute      of 
Frauds  118 
recovery  by  defaulting  vendee 
in  possession  under  contract 
unenforceable  by  Statute  of 
Frauds                                         loi 
Incidental  benefits,  recovery   for       51 
Indorsement,  See  Forgery. 
Infants,   restoration   of   considera- 
tion  for  disaffirmed  contracts       71 
Injury  to  business,  money  paid  to 

prevent  482 

Innkeepers,    recovery    against,    in 

assumpsit  17 

Insane  persons,  liability  for  neces- 
saries 67,  71 
Insurance 

payment     by     insurer,     under 

mistake  247,  256,  258 

recovery    back     of     premiums 
paid   upon   illegal   insurance 

219,  222,  224 
where  breach  of  contract  by 
insurer  168 

Interest 

on  money  paid  by  mistake    302  n. 
payment  by  mistake  266 

usurious  509-515 

Joint  tortfeasors.  See  Tort. 
Judgment 

as  a  contract  I,  2 

recovery  of  money  paid  upon 
a  judgment  after  reversal 

541-545 


INDEX. 


689 


Judgment,  continued  page. 

recovery  of  money  paid  upon 
a      judgment      before      re- 
versal 531-540 
recovery  upon  a  judgment     i,  2 

Knowledge,  means  of,  as  affecting 
mistake  261-264 

Labor,  See  Benefits,  Breach   of 

Contract,  Gratuity,  Services. 
Laches  in  demanding  back  money 

paid  by  mistake  291 

Land,  mistake  in  conveyance   356-370 
See  also  Duress  of  Real  Prop- 
erty,    Improvements,     Stat- 
ute OF  Frauds,  Title. 
Law 

change  of  430-435 

compulsion  of  526 

mistake  of  403-444 

Legacy,  payment  by  mistake 

287,  409,  415 
Legal   duty   of  another,   perform- 
ance of  28 
Legal     tender     cases,     effect     of 

change  of  law  430 

License,   payment   under  void   or- 
dinance 423-429 
Lienholdcr,    payment    by,    to    pre- 
serve lien  445 
Life,     recovery     for     services     in 

preservation  of  50 

Lost  receipt,   second  payment  be- 
cause of  263 
Lotteries 

recovery  by  principal  against 

agent  for  tickets  sold  230 

recovery  of  winnings  237 

Lunatics,  See  Insane  Persons. 

Maintenance,  See  Support. 

Marriage  brokerage  contracts,  re- 
covery back  of  consideration  224  n. 

Marriage,  services  rendered  in  ex- 
pectation of  64 
See  also  Husband  and  Wife. 

Mechanic's  lien,  payment  of  under 
duress  447,  479 

Woodruff's  Cases — 44 


PAGE. 

Mistake  of  fact  239-403 

as  to   agent's  authority     389-403 
as  to  existence  of  contract 

315-329 
as  to  existence  of  subject  mat- 
ter 329-334 
as  to  expectations  245-^46 
as   to  negotiable   instruments 

370-388 
as  to  person  269,  322 

as  to  pregnancy  251 

as  to  quantity  of  goods  255 

as  to  quantity  of  land        356-370 
as  to  terms  of  supposed  agree- 
ment 319 
as  to  title  of  vendor    260,  334-342 
as  to  written  contracts      354-370 
compromise                   248-256,  411 
equal  fault                            297-300 
gratuity  conferred  under   306-315 
improvements    put    upon    an- 
other's property                34^-354 
in  allowing  credit  241 
in  paying  insurance     247,  256,  258 
interest  on  money  paid  by    302  n. 
knowledge  or  belief  as  affect- 
ing                                     256-264 
means  of  knowledge  as  affect- 
ing                                     261-264 
notice    or    demand   before    re- 
covery                               300-305 
plaintiff's  negligence  as  affect- 
ing                                     290-^96 
when    not    against    conscience 
for  defendant  to  retain 

264-270 
Mistake  of  law  403-444 

by  public  officer  435 

change  of  law  430-435 

foreign  law  441-444 

in  general  403-422 

payment  to  court  officer  438 

void  ordinances  423-429 

Mortgagee,  taxes  paid  by,  to  pre- 
vent sale  445 
Municipal  corporations 

benefits     conferred     upon,    by 
ultra  vires  contract  79 


690 


INDEX. 


PAGE. 

Municipal  corporations,  continued 
loan  to  agent  of,  having  no  au- 
thority 394-398 
Mutual  services  54 

Negligence    as    affecting    payment 
under  mistake  290-300 

See  also  Knowledge,  Means  of. 
Negotiable  instruments 
bill  of  exchange 

payment    by    mistake    as    to 

drawer's  signature       370-379 
payment    by    mistake    as    to 

indorser's  signature  379 

payment  by  one  mistakenly 
supposing    himself    the 
drawee  298  n. 

promissory  notes 

payment  by  mistake  by  one 
supposing    himself    the 
maker  381  n.,  382 

Notice,  necessity  of 

before  recovery  of  money  paid 

on  illegal  contract  211 

before  recovery  of  money  paid 
under  mistake  300-305 

Officers,  public 

liability    for    moneys    officially 

received  12,  13 

liability  of  usurper  636 

office  brokerage  contracts,  re- 
covery of  consideration  paid 

230 
officer   of    court,    payment    to, 

under  mistake  of  law  438 

payment  by,  under  mistake  of 

law  435 

recovery  of  excessive  fees  ex- 
torted by  490-498 
recovery  back  of  money  paid 
for  corruption  of  233 
See  also   Sheriff. 
Ordinances,     recovery     of     money 
paid  under  void  ordinances  423-429 


PAGE. 

Par  delictum  208,  215,  222 

Parent  and  child,  waiver  by  par- 
ent of  tortious  interference  with 
child  635 

Parol  evidence  rule 

as   affecting   written    contracts 

based  on  mistake  354-37° 

equitable  application  in  quasi- 
contract  651 

Partnership,  recovery  against,  for 
benefits  conferred  by  an  un- 
authorized contract  under  seal, 
made  by  one  partner  315,  317 

Patents 

mistake  as  to  ownership    260,  338 
waiver    of    tortious    infringe- 
ment 590 

Paupers,  recovery  for  aid  to 

311,  313  n. 

Payment  of  another's  debt,  with- 
out request  24 

Payment,  See  also  Compulsion,  Du- 
ress, Mistake. 

Person,  mistake  as  to  party  to  a 
contract  269,  322 

Pilotage  fees,  recovery  of  statu- 
tory 9 

Premiums,  See  Insurance. 

Preservation  of  life,  recovery  for 
services  in  50 

Preservation  of  property,  recovery 
for  services  in  37 

Principal  and  agent,  See  Agent. 

Prisoners,  recovery  for  services  il- 
legally compelled  310 

Promissory  notes.  See  Negotiable  In- 
struments. 

Promoter's  contracts,  liabiHty  of 
corporation  324-326 

Property,  See  Duress,  Improve- 
ments, Preservation,  Statute 
OF  Frauds,  Title. 

Protest  against  duress      575,  577,  578 

Public  officers,  See  Officers. 

Pul)lic  service  corporations,  pay- 
ment to,  of  excessive  rates  un- 
der duress  482,  498-508 


INDEX. 


691 


Quasi-contract  page. 

distinguished    from    true    con- 
tract 2,  19 
in  its  relation  to  equity      640-652 
when    included    in    "contract" 
as  used  in  statutes  5 

Railroads,  See  Common  Carriers. 

Real    property,    See     Duress    of 

Real   Property,   Improvements, 

Statute  of  Frauds,  Title. 

Receipt,    second   payment   because 

of  lost  263 

Receiver,  payment  to,  under  mis- 
take of  law  438 
Recognizance,  recovery  upon  6 
Record,  recovery  upon  i 
Rent,  recovery  back  of  rent  paid  166 
Repairs,  liability  of  one  co-tenant 

to  another  43 

Request 

benefits      conferred      by,     but 

without  contract  54 

benefits  conferred  without  24 

Restitution  before  recovery  of 
money  paid  for  non-existent 
subject  matter  331  n. 

Reward 

liability  for,  where  no  knowl- 
edge of  offer  69 
services  rendered  with  knowl- 
edge of  offer  but  no  intent 
to  accept  57 
Royalties,  See  Patent. 

Sale  of  goods 

mistake  as  to  quantity 

255,  272,  299 
mistake  as  to  title  339 

recovery  against  defendant 
who  has  broken  the  con- 
tract 157,  161 
recovery  against  defendant 
who  has  broken  a  contract 
unenforceable  by  Statute  of 
Frauds  104 
recovery  by  plaintiff  who  has 
broken  the  contract 

144,  148,  151 


Sale  of  goods,  continued  page. 

recovery  by  plaintiff  who  has 
broken  a  contract  unen- 
forceable by  Statute  of 
Frauds  95 

waiver  of  fraud  in  604-610 

Scire  facias  upon  a  recognizance        6 
Services 

as  gratuity  by  mistake      306,  311 
as    gratuity    without    request 

24,  25,  26 
during  illicit  cohabitation  63 

in  expectation  of  marriage  64 

in  the  family  relation  61 

mutual  54 

recovery      against      defendant 
who    has    broken    the    con- 
tract 153,  155,  157,  163,  164 
recovery      against      defendant 
who  has  broken  contract  un- 
enforceable   by     Statute    of 
Frauds  105  n.,  108-110 
recovery  by  plaintiff  who  has       i 
broken  the   contract     122,    124, 
126,  133,   134,  136,  142,   143 
recovery  by  plaintiff  who  has 
broken     a     contract     unen- 
forceable     by      Statute      of 
Frauds  94,  97,  100  n. 
Set-off,  payment  by  mistake  as  to 

existence  of  268  n. 

Settlement,  See  Compromise. 
Sheriff 

liability  to  purchaser  at  execu- 
tion sale  23 
liability    for    collections    made 

12,  13 
payment  by  mistake  to  wrong 
creditor  264,  271 

Slave,  recovery  for  work  done  by 

supposed  306 

Specific  performance,  existence  of 
remedy  of,  as  preventing  recov- 
ery in  quasi-contract  107  «. 
Statute    of    Frauds,    Sec    Frauds, 

Statute  of. 
Statutes 

meaning  of  "contract''  as  used 
in  I,  5 


6^2 


INDEX. 


Statutes,  continued  page. 

payment    under   void    statutes 

423-429 
recovery     upon     a     statutory 
duty  8,  10,  II 

Stockholder,  statutory  liability  of      8 
Stolen   money,   recovery   from   in- 
nocent receiver  614 
Sunday  contracts,  effect  of  illegal- 
ity of                                         217,  218 
Support,  performing  another's  con- 
tract to  34 
Sureties,  See  Contribution. 
Taxes 

payment   of   another   person's, 

by  mistake  242 

payment  by  mortgagee  to  pre- 
vent sale  445 
recovery    back    of    taxes    ille- 
gally laid                           546-579 
See  also  License. 

Tenant  in  common 

liability  for  improvements  45 

liability  for  repairs  43 

waiver  of  tort  by  604 

Title 

cloud  on  567-571 

mistake  as  to  260,  334-342 

what  is  good  337 

Tort 

joint  tortfeasors 

contribution  461-469 

waiver  of  tort  against  596 

waiver  of  tort 

by  tenants  in  common  604 

conversion  579-587,  631 

diminution  of  plaintiff's  es- 
tate 590-596 
false  imprisonment         587,  633 
fraud                         588,  604-610 
interference   with   status   or 
contract  635 


Tort,  continued  PAGE. 

joint  tortfeasors  596 

money  procured  wrongfully 
and  passed  to  innocent 
holder  610-621 

trespass  to  goods      592,  622-625 
trespass  to  land  625-633 

unjust    enrichment    of    de- 
fendant 587-590 
usurpation  of  office  636 
Trespass  to  goods,  waiver  of 

592,  622-625 
Trespass  to  land,  waiver  of      625-633 
Trover,  See  Conversion. 
Trustee,  assumpsit  against       640-650 

Ultra  vires  contracts,  benefits  con- 
ferred under  77 
Uncertainty    of    contract,    benefits 

conferred  328 

Use  and  occupation,  assumpsit  for 

400,  625-633 
Usurious  interest 

allowance  on  the  principal 

513  w.,  514 
recovery  back  509-515 

Usurpation  of  office,  recovery  of 
salary  and  fees  from  usurper      636 

Vendor    and    purchaser,    See    Im- 
provements,  Statute  of 
Frauds,  Title. 

Void  ordinances,  pajanent  under 

423-429 

Voluntary  benefits,  See  Benefits. 

Wagers,  recovery  back  of  stake 
money  212,  213,  230  n. 

Waiver  of  tort,  See  Tort. 

Water  company,  recovery  of  ex- 
cessive rates  paid  to  482 

Work  and  labor,  See  Services. 


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LAV/  LIBRARY 

UNIVERSn  Y  OF  CALIFORNIA 

LOS  ANGELES 


TT\/\/,  l^ofi 


SOUTHERNBKflUSSHSaSl 


Xa    000  819  207    2 


